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Full text of "Final report of the Select Commission on Immigration and Refugee Policy : joint hearings before the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary and Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary, Ninety-seventh Congress, first session, on the final report of the Select Commission on Immigration and Refugee Policy, May 5, 6, and 7, 1981"

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FINAL REPORT OF THE SELECT COMMISSION ON 
IMMIGRATION AND REFUGEE POLICY 



JOINT HEARINGS 

BEFORE THE 

SUBCOMMITTEE ON IMMIGKATION 
AND REFUGEE POLICY 

OF THE 

SENATE COMMITTEE ON THE JUDICIARY 

AND 

SUBCOMMITTEE ON IMMIGRATION, REFUGEES 
AND INTERNATIONAL LAW 

OF THE 

HOUSE COMMITTEE ON THE JUDICIARY 

NINETY-SEVENTH CONGRESS 

FIRST SESSION 

ON THE 

FINAL REPORT OF THE SELECT COMMISSION ON IMMIGRA- 
TION AND REFUGEE POLICY 



MAY 5, 6, AND 7, 1981 



Serial No. J-97-38 



Printed for the use of the Committee on the Judiciary 




FINAL REPORT OF THE SELECT COMMISSION ON 
IMMIGRATION AND REFUGEE POLICY 



JOINT HEARINGS 

BEFORE THE 

SUBCOMMITTEE ON IMMIGRATION 
AND REFUGEE POLICY 

OF THE 

SENATE COMMITTEE ON THE JUDICIARY 

AND 

SUBCOMMITTEE ON IMMIGRATION, REFUGEES 
AND INTERNATIONAL LAW 

OF THE 

HOUSE COMMITTEE ON THE JUDICIARY 

NINETY-SEVENTH CONGRESS 

FIRST SESSION 

ON THE 

FINAL REPORT OF THE SELECT COMMISSION ON IMMIGRA- 
TION AND REFUGEE POLICY 



MAY 5, 6, AND 7, 1981 



Serial No. J-97-38 



Printed for the use of the Committee on the Judiciary 




U.S. GOVERNMENT PRINTING OFFICE 
83-8U O WASHINGTON : 1981 



U.S. SENATE 

COMMITTEE ON THE JUDICIARY 

[97th Congress] 
STROM THURMOND, South Carolina, Chairman 
CHARLES McC. MATHIAS, Jr., Maryland JOSEPH R. BIDEN, Jr., Delaware 
PAUL LAXALT, Nevada EDWARD M, KENNEDY, Massachusetts 

ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia 

ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio 

ALAN K. SIMPSON, Wyoming DENNIS DeCONCINI, Arizona 

JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont 

CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana 

JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama 

ARLEN SPECTER, Pennsylvania 

Emory Sneeden, Chief Counsel 
QuENTiN Crommeun, Jr., Staff Director 



Subcommittee on Immigration and Refugee Policy 

ALAN K. SIMPSON, Wyoming, Chairman 

STROM THURMOND, South Carolina EDWARD M. KENNEDY, Massachusetts 

CHARLES E. GRASSLEY, Iowa DENNIS DeCONCINI, Arizona 

Richard W. Day, Chief Counsel and Staff Director 

Donna Alvarado, Counsel 

Charles O. Wood, Counsel 

Arnold H. Leibowitz, Special Counsel 



U.S. HOUSE OF REPRESENTATIVES 

COMMITTEE ON THE JUDICIARY 

PETER W. RODINO, Jr., New Jersey, Chairman 
JACK BROOKS, Texas ROBERT McCLORY, Illinois 

ROBERT W. KASTENMEIER, Wisconsin TOM RAILSBACK, Illinois 

DON EDWARDS, California HAMILTON FISH, Jr., New York 

JOHN CONYERS, Jr., Michigan M. CALDWELL BUTLER, Virginia 

JOHN F. SEIBERLING, Ohio CARLOS J. MOORHEAD, California 

GEORGE E. DANIELSON, California JOHN M. ASHBROOK, Ohio 

ROMANO L. MAZZOLI, Kentucky HENRY J. HYDE, Illinois 

WILLIAM J. HUGHES, New Jersey THOMAS N. KINDNESS, Ohio 

SAM B. HALL, Jr., Texas HAROLD S. SAWYER, Michigan 

MIKE SYNAR, Oklahoma DAN LUNGREN, California 

PATRICIA SCHROEDER, Colorado F. JAMES SENSENBRENNER, Jr., 

BILLY LEE EVANS, Georgia Wisconsin 

DAN GLICKMAN, Kansas BILL McCOLLUM, Florida 

HAROLD WASHINGTON, Illinois 
BARNEY FRANK, Massachusetts 

Alan A. Parker, General Counsel 

Garner J. Cune, Staff Director 

Frankun G. Polk, Associate Counsel 

(II) 



Ill 



Subcommittee on Immigration, Refugees, and International Law 



ROMANO L 
SAM B. HALL, Jr., Texas 
PATRICIA SCHROEDER, Colorado 
BARNEY FRANK, Massachusetts 



MAZZOLI, Kentucky, Chairman 

HAMILTON FISH, Jr.. New York 
DAN LUNGREN, California 
BILL McCOLLUM, Florida 
Arthur P. Endres, Jr., Counsel 
Harris N. Miller, Legislative Assista7it 
Peter Regis, Legislative Assistant 
Joe Wolf, Associate Counsel 



CONTENTS 



OPENING STATEMENTS 

Page 

Fish, Hon. Hamilton, a U.S. Representative from the State of New York 21 

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts 20 

Mazzoli, Hon. Romano L., chairman, House Subcommittee on Immigration, 
Refugees, and International Law, a U.S. Representative from the Common- 
wealth of Kentucky 16 

Simpson, Hon. Alan K., chairman, Senate Subcommittee on Immigration and 

Refugee Policy, a U.S. Senator from the State of Wyoming 2 

Thurmond, Hon. Strom, chairman. Senate Committee on the Judiciary, a U.S. 

Senator from the State of South Carolina 10 

CHRONOLOGICAL LIST OF WITNESSES 

Tuesday, May 5, 1981 

Hesburgh, Rev. Theodore, chairman, Select Commission on Immigration and 
Refugee Policy, accompanied by, Lawrence H. Fuchs, executive director of 
the Commission, and Ralph Thomas, deputy director of the Commission 23 

Ellsworth Perry, executive vice president. National Council of Agricultural 

Employers 53 

Neville, Robert, general counsel, National Restaurant Association 64 

Wright, Richard W., counsel, Sherman and Howard, Denver, formerly presi- 
dent Mountain States Employers Council 71 

Donahue, Thomas, secretary-treasurer, AFL-CIO accompanied Ijy, Ray Deni- 
son, director, department of legislation, and Markley Roberts, economist 88 

Wednesday, May 6, 1981 

Graham, Hon. Robert D., Governor of the State of Florida, on behalf of the 

National Governors' Association 115 

Hanna, Hon. William E., Jr., mayor of Rockville, Md., on behalf of the United 
States Conference of Mayors 121 

Huber, James E., chairman, board of commissioners, Lancaster County, Pa., 
on behalf of the National Association of Counties, accompanied by, Ronald 
Gibbs, associate director, NACO 128 

Martinez, Vilma, president and general counsel, Mexican American Legal 
Defense and Educational Fund 149 

Simmons, Althea, T. L., director of the Washington bureau of the National 
Association for the Advancement of Colored People 161 

Kee, Norman Lau, chairman, Immigration and Refugee Policy Task Force of 
the U.S.-Asia Institute 168 

Shattuck, John, legislative director, American Civil Liberties Union 251 

Carliner, David, chairman. Committee on Immigration and Nationality, Sec- 
tion of Administrative Law, American Bar Association 272 

Mailman, Stanley, Association of Immigration and Nationality Lawyers 292 

Semler, Michael, Migrant Legal Action program 312 

(V) 



VI 
Thursday, May 7, 1981 

Page 

Sternberg, Charles, chairman, Committee on Migration and Refugee Affairs, 

American Council of Voluntary Agencies for Foreign Service, Inc 333 

Conner, Roger, executive director, Federation for American Immigration 

Reform 337 

Alesi, Gladys E., executive director, American Immigration and Citizenship 

Conference 346 

Eisen, Phyllis, director of immigration program, Zero Population Growth 347 

Bouvier, Dr. Leon, director, demographic research and policy analysis, Popu- 
lation Reference Bureau 454 

Keely, Dr. Charles, associate, Center, for Policy Studies, Population Council .... 474 

North, David, vice president, New Transcentury Foundation 511 

Teitelbaum, Dr. Michael, program officer. Ford Foundation 523 

* ALPHABETICAL LISTING AND MATERIALS SUBMITTED 

Alesi, Gladys E.: Testimony 346 

Bouvier, Dr. Leon: 

Testimony 454 

Prepared statement 457 

Carliner, David: 

Testimony 272 

Prepared statement 275 

Donahue, Thomas: 

Testimony 88 

Prepared statement 99 

Conner, Roger: 

Testimony 337 

Prepared statement 339 

Reply to Julian Simon 344 

Eisen, Phyllis: 

Testimony 347 

Prepared statement 350 

Linking immigration policy with population goals 367 

Looking North to Canada, by Jane Mackie, from the ZPG Reporter, 

September 1979 369 

The World Need for Family Planning Programs, by the Alan Guttmacher 

Institute, January 1981 379 

Prepared statement of Robert Taft, Jr., before the Senate Appropriations 

Subcommittee on Foreign Operations 382 

Prepared statement of Sharon L. Camp, Ph. D., before the House Foreign 

Affairs Committee 408 

Ellsworth, Perry: 

Testimony 53 

Prepared statement 55 

Graham, Hon. Robert D.: 

Testimony 115 

Prepared statement 118 

Hanna, Hon. William E., Jr.: 

Testimony 121 

Prepared statement 124 

Hesburgh, Rev. Theodore: Testimony 23 

Huber, James E.: 

Testimony 128 

Prepared statement 130 



VII 

Kee, Norman Lau: Page 

Testimony 168 

Prepared statement 169 

U.S.-Asia Institute 172 

An Asian/Pacific American Perspective: Future Directions of U.S. Immi- 
gration and Refugee Policy 175 

Asian/Pacific American National Leadership Conference, 1980 194 

Keely, Dr. Charles: 

Testimony 474 

Prepared statement 477 

Foreign Relations: The Neglected Dimension of U.S. Immigration and 

Refugee Policy, by Charles B. Keely, the Population Council 485 

U.S. Immigration: A Policy Analysis, Ijy Charles B. Keely, the Population 

Council 491 

Mailman, Stanley: 

Testimony 292 

Prepared statement 294 

Letter to Mr. Quentin Crommelin, Jr., staff director, U.S. Senate, Com- 
mittee on the Judiciary, from Stanley Mailman 311 

Martinez, Vilma: 

Testimony 149 

Prepared statement 151 

Neville, Robert: 

Testimony 64 

Prepared statement 66 

North, David: 

Testimony 511 

Prepared statement 514 

Semler, Michael: 

Testimony 312 

Prepared statement 315 

Shattuck, John: 

Testimony 251 

Prepared statement 254 

Constitutional Implications of a Work Authorization Card 269 

Simmons, Althea T.: 

Testimony 161 

Prepared statement 164 

Simpson, Hon. Alan K.: 

Opening statement 2 

Prepared statement of Senator Paula Hawkins 140 

Sternberg, Charles: 

Testimony 333 

Prepared statement 334 

Teitelbaum, Dr. Michael: 

Testimony 523 

Prepared statement 526 

Wright, Richard W.: 

Testimony 71 

Prepared statement 73 

APPENDIX 

Additional Statements 

Prepared statement of Representative Jerry M. Patterson 551 

Prepared statement of Ralph Watkins, legislative director of the New Immi- 
grants Project of the United Church of Christ 561 

Additional Reports and Letters 

Right Versus Right: Immigration and Refugee Policy in the United States, by 

Michael S. Teitelbaum 567 



VIII 

Page 

Immigration Policy and Individual Privacy, by Trudy Hayden, a report pre- 

Rared for the American Civil Liberties Union by the Privacy Project of the 
lew York City Liberties Union 606 

Shortcomings of the Select Commission on Immigration and Refugee Policy's 
Recommendations on Enforcement Options, submitted by: Alien Rights Law 
Project; American Friends Service Committee; Immigration Law Clinic, 
Columbia Law School; Institute for Public Representation, Georgetown Uni- 
versity Law Center; Mexican-American Legal Defense Fund; National Im- 
migration Project of the National Lawyers' Guild; National Office of Jesuit 
Social Ministries; and Office for Church in Society, United Church of 

Christ 631 

Criteria for the Reform of Immigration Policy, by Barry R. Chiswick, with 

covering letter 645 

The Impact of Immigration on U.S. Population Size, by Leon F. Bouvier (») 

Enforcing the Immigration Law: A Review of Options, by David S. North, 

with the assistance of Jennifer R. Wagner i") 

Letter from James B. Grant to Hon. Alan K. Simpson 697 

Letter from John J. Gunther to Hon. Romano L. Mazzoli 700 

Letter from S. Steven Karalekas to Hon. Alan K. Simpson 702 



' This report may be found in the files of the Senate Subcommittee on Immigration and 
Refugee Policy. 

2 This report may be found in the files of the Senate Subcommittee on Immigration and 
Refugee Policy. Copies may be purchased from the Center for Labor & Migration Studies, New 
TransCentury Foundation, 1789 Columbia Road NW.. Washington, D.C. 20009. 



FINAL REPORT OF THE SELECT COMMISSION 
ON IMMIGRATION AND REFUGEE POLICY 



TUESDAY, MAY 5, 1981 

U.S. Congress, Subcommittee on Immigration and 
Refugee Policy of the Senate Committee on the 
Judiciary and Subcommittee on Immigration, Refu- 
gees, AND International Law of the House Commit- 
tee ON THE Judiciary, 

Washington, D.C. 
The subcommittees met at 2 p.m. in room 2228, Dirksen Senate 
Office Building, Hon. Alan K. Simpson (chairman of the Senate 
subcommittee) presiding. 

Present: Senators Simpson, Thurmond, Grassley, and Kennedy; 
and Representatives Mazzoli (chairman of the House subcommit- 
tee). Hall, Schroeder, Frank, Fish, Lungren, and McCollum. 

Senator Simpson. We call the hearing to order, and at this time I 
recognize Chairman Ron Mazzoli of the House Subcommittee on 
Immigration, Refugees, and International Law. 

Representative Mazzou. Thank you, Mr. Chairman. I ask unani- 
mous consent that the subcommittees permit coverage of this hear- 
ing by television broadcast, radio broadcast or still photography. 
Senator Simpson. Without objection, it is so ordered. 
Representative Mazzoli. Thank you, Mr. Chairman. 
Senator Simpson. That's an interesting part of House procedure 
there, isn't it? We don't do that over here. We just let her rip. 
Representative Mazzoli. I think I like the let her rip system 
much better, really. 

Senator Simpson. Well, it is a privilege to participate in these 
proceedings. I have a longer and more complete statement and will 
request that that be entered into the record. 
[The statements of Senators Simpson and Thurmond follow:] 

(1) 



Oplning Siail.'^-.lnt of 

Honorable Alan K. Simpson 

Chairman 

Subcommittee on Immigration and Refugee Policy 

Joint Hearings 

May 5. 1981 

Chairman Mazzoli. Colleagues from the Senate Subcommittee^ and 
Colleagues from the House Subcommittee: 

The first joint hearing of the Subcommittee on Immigration 
AND Refugee Policy of the U.S. Senate Committee on the Judiciary 
and the Subcommittee on Immigration^ Refugees and International 
Law of the U.S. House of Representatives Committee on the Judiciary^ 
on the subject of the Final Report of the Select Commission on 
Immigration and Refugee Policy^ will come to order. 

Joint Congressional hearings are nearly unprecedented, I 
understand that the last time it occurred was thirty years ago 
and then both houses of Congress were controlled by my good 
colleagues on the other side of the aisle! Chairman [Iazzoli 
and I trust that the fact that we are able to work together on 

THIS issue to this DEGREE--DESP I TE OUR DIFFERING PARTY AFFILIATIONS-- 
WILL INDEED INDICATE THE NECESSITY FOR A BIPARTISAN REVISION OF OUR 
nation's IMMIGRATION AND REFUGEE POLICY. \Ie ALSO TRUST THAT THE 

joint hearing process and close consultations with each body will 
facilitate the development and enactment of the legislative reforms 
which are so vitally needed in this area. 

These initial hearings are intended to obtain public reaction 
TO the Final Report of the Select Commission. We hope by this, not 
only to learn more about the status of our immigration and refugee 

POLICIES^ but also TO ASSESS THE POLITICAL ENVIRONMENT IN WHICH THE 

upcoming debate will be conducted. Our goal is to develop policies 

AND specific LEGISLATIVE PROPOSALS WHICH WILL BOTH SATISFY THE NEEDS 

OF THE American people and be politically realistic to the degree 

THAT THEY CAN BE SUCCESSFULLY ENACTED INTO LAW. OnCE THESE INITIAL 



GENERAL HEARINGS ARE COMPLETE^ WE SHOULD BE IN A BETTER POSITION TO 
DETERMINE WHAT HEARINGS WILL BE CONDUCTED ON PARTICULAR ISSUES AND 
WHAT LEGISLATIVE STRATEGIES OFFER THE MOST PROMISE OF MEETING OUR 
GOALS OF SUBSTANTIVE REFORM AND POLITICAL FEASIBILITY. In THE NEXT 
TWO YEARS, THE YEARS OF THE 97tH CONGRESS, THE UNITED STATES WILL 

have an extraordinary opportunity to reform its immigration and 
refugee policy. public awareness, sensitivity and interest are now 
unusually high. furthermore, the two year effort of the select 
Commission on Immigration and Refugee Policy has just concluded 

WITH the flARCH IST FILING OF ITS FiNAL REPORT, WHICH WILL BE THE 
SUBJECT OF THESE HEARINGS. 

I HAVE HAD THE HONOR OF BEING ONE OF THE SIXTEEN COMMISSIONERS 
WHO WERE A PART OF THAT EFFORT, WHICH WAS THE MOST AMBITIOUS SUCH 
PROJECT IN OVER 50 YEARS. ThE ReV. ThEODORE ■'l. HeSBURGH WHO WILL 
BE THE FIRST WITNESS AT THESE JOINT HEARINGS WAS THE CHAIRMAN OF 

THE Select Commission. Father Ted did a most remarkable job in that 
CAPACITY. He is a true humanitarian and a man who gives much OF 
himself to any issue in which he is involved. Without his innate 
skills OF reconciliation and direction the task would have been 
A long and labored one. 

At present an Inter-Agency Task Force within the Executive 
Branch is in the process of formulating concrete policy recommenda- 
tions TO THE President. We await with considerable interest receipt 
OF the President's views. 

The current flow of immigrants and refugees to the United States 
IS OUT of control. Existing law allows total legal admissions to 
grow continuously, largely without regard to the needs of this 
country. Refugees are being admitted in numbers four times the 
50,000 LEVEL specified as the "normal" flow in the Refugee Act of 
1980. Indeed, the U.S. today is taking in more legal immigrants 

AND refugees FOR PERMANENT RESETTLEMENT THAN THE REST OF THE WORLD 
COMBINED. In addition, HUNDREDS OF THOUSANDS OF ILLEGAL IMMIGRANTS 
CROSS OUR BORDERS EVERY YEAR. HaNY STAY, CREATING A FUGITIVE AND 
EXPLOITED SUBSOCIETY IN OUR COUNTRY WHICH IS ESTIMATED TO COMPRISE 



BETWEEN 3 AND 8 MILLION PEOPLE. ThEY PROVIDE EVIDENCE TO THEIR 
NEIGHBORS AND TO THE CITIZENRY AT LARGE THAT OUR IMMIGRATION LAWS 
ARE BEING FLOUTED AND IGNORED. THROUGH EXISTING LAWS AND ENFORCEMENT 
PROCEDURES. THE SITUATION CAN ONLY DETERIORATE. GIVEN THE CONDITIONS 
IN SO MUCH OF THE ThIRD WoRLD. WHICH IS NOW THE PRIMARY SOURCE OF 
IMMIGRATION AND REFUGEE FLOWS TO THE U.S. At A TIME WHEN WE FACE 

the prospect of a tightened economy. the united states must set 
firm limits on entrants to assure that we do not take on burdens 
that we ourselves cannot handle. 

Immigration and refugee policy reform is a perilous minefield 
OF emotionally charged issues. One cannot but consider any such 
discussion as being about one's OWN ancestors and in some cases. 

ABOUT oneself. FuRTHER. IT BRINGS INTO QUESTION ONE's IMAGE OF 

America's past, an assessment of America's present and. most difficult 

OF ALL. THE DIRECTION OF AmERICA's FUTURE, ThERE IS A GENERAL CON- 
SENSUS THAT REFORM IS REQUIRED. SOME CLEAR RESTATEMENT OF WHERE 
WE STAND. It is IMPERATIVE THAT THE DEBATE CONCERNING SUCH NEEDED 
REFORM BE CONDUCTED IN AN ATMOSPHERE OF CALM. COMPASSIONATE. AND 
CAREFUL DELIBERATIONS RECOGNIZING THE DIFFICULTY OF THE QUESTION 
AND THE EARNESTNESS OF THOSE WHO WILL SPEAK TO IT. 

In my VIEW. THE FUNDAMENTAL OBLIGATION OF THE GOVERNMENT OF 
ANY NATION. INDEED THE VERY REASON FOR ITS EXISTENCE IS TO PROMOTE 
THE NATIONAL INTEREST--THAT IS. THE LONG-TERM WELFARE OF THE 
MAJORITY OF ITS CITIZENS AND THEIR DESCENDANTS. ACCORDINGLY. I 
BELIEVE THAT U.S. IMMIGRATION POLICY SHOULD BE BASED ON WHAT WOULD 
PROMOTE THE WELL BEING OF THE AMERICAN PEOPLE. ThIS WOULD INCLUDE 
THE MAINTENANCE OF SPECIFIC BENEFITS SUCH AS FREEDOM. SAFETY. AN 
ADEQUATE STANDARD OF LIVING. AND POLITICAL INDEPENDENCE AND STABILITY. 
It also INCLUDES THE PRESERVATION OF CULTURAL QUALITIES AND NATIONAL 
INSTITUTIONS WHICH CONTRIBUTE TO THESE SPECIFIC BENEF ITS--AND THE 
ABSENCE OF WHICH IN MANY OTHER COUNTRIES IS ONE OF THE DIRECT CAUSES 
OF THEIR RELATIVE LACK OF JUST SUCH BENEFITS. 

The MOVING words on the Statue of Liberty are ciifiD in ncarly 

ALL DISCUSSIONS OF U.S. IMMIGRATION POLICY. ThE IDEAS EXPRESSED 



THERE ARE MOST APPEALING AND ARE CERTAINLY CONSISTENT WITH THE 
TRADITIONAL HOSPITALITY AND CHARITY OF THE AMERICAN PEOPLE. H0WEVER> 
THIS GREAT COUNTRY IS NO LONGER ONE OF VAST, UNDEVELOPED SPACE AND 
RESOURCES, WITH A RELATIVELY SMALL POPULATION. In THAT EARLIER 
TIME, THE NATION COULD WELCOME MILLIONS OF NEWCOMERS. SoME BROUGHT 

SKILLS. Many others brought few skills, but were willing to work. 
In a smaller America with a simpler, labor intensive economy and 

A labor shortage, that was often quite ENOUGH--THAT, PLUS THEIR 
GREAT DRIVE TO BECOME AMERICANS. 

A 1980 STUDY BY Dr. Leon F. Bouvier shows that even if net 

IMMIGRATION EQUALS 750,000 PER YEARj THE FERTILITY RATE OF THE 
EXISTING POPULATION AND ITS DESCENDANTS REMAINS AT ITS PRESENT 
LOW LEVELj AND THE FERTILITY RATE OF NEW IMMIGRANTS IMMEDIATELY 
DECLINES TO THAT OF THE POPULATION AS A WHOLE; THE U.S. POPULATION 
IN THE YEAR 2080 WILL BE 300,000,000. It IS QUITE POSSIBLE THAT 
NET irUlIGRATION CURRENTLY EQUALS OR SURPASSES THE 750,000 PER YEAR 
LEVEL. 

The Bouvier study also shows that under the assumptions already 
described, one-third of the u.s. population in 2080 would consist 

OF POST-1979 IMMIGRANTS AND THEIR DESCENDANTS. ThIS FINDING HAS 
PROFOUND U'iPLlCATIONS BECAUSE CURRENT IMMIGRATION FLOWS ARE SUBSTAN- 
TIALLY DIFFERENT FROM PAST FLOWS IN ETHNICITY AND LANGUAGE 
CONCENTRATION. 

I REALIZE THAT I AM ABOUT TO ENTER INTO A VERY SENSITIVE AREA 
AND THERE IS SOME RISK THAT WHAT I WILL SAY MAY BE MISUNDERSTOOD. 
So, AT THE OUTSET, LET ME EMPHASIZE THAT I BELIEVE NO INDIVIDUAL 
APPLYING TO THIS COUNTRY LAWFULLY IN SEARCH OF FREEDOM AND 
OPPORTUNITY AND ANXIOUS TO ADAPT TO THIS COUNTRY'S POLITICAL 
INSTITUTIONS AND VALUES SHOULD BE DISCRIMINATED AGAINST BECAUSE OF 
COLOR, NATIONALITY OR RELIGION, AS WE HAVE SOMETIMES DONE IN THE 
nation's PAST. I AM VERY MUCH AWARE OF THE GREAT CONTRIBUTIONS 

made by various ethnic groups to the well-being of all americans. 

Immigration to the United States is now dominated to a high 
degree by persons speaking a single foreign language, spanish, when 



ILLEGAL IMMIGRATION IS CONSIDERED. ThE ASSIMILATION OF THE ENGLISH 
LANGUAGE AND OTHER ASPECTS OF AMERICAN CULTURE BY SpAN I SH-SPEAKING 
IMMIGRANTS APPEARS TO BE LESS RAPID AND COMPLETE THAN FOR OTHER 
GROUPS. A STUDY BY THE SELECT COMMISSION STAFF INDICATES THAT 
IMMIGRANTS FROM LaTIN AMERICA BECOME CITIZENS AT A LOWER RATE THAN 
THOSE FROM OTHER REGIONS. In PART THE APPARENTLY LOWER DEGREE OF 
ASSIMILATION MAY BE DUE TO THE PROXIMITY TO AND THE CONSTANT 
INFLUX OF NEW SpANSIH-SPEAKING ILLEGAL IMMIGRANTS FROM LaTIN AMERICA^ 
MANY OF WHOM REGARD THEIR STAY AS ONLY "TEMPORARY" AND THUS MAY NOT 
FEEL THE NEED OR DESIRE TO LEARN ENGLISH OR OTHERWISE ASSIMILATE; 
AND FINALLY THE GREATER TOLERANCE FOR BILINGUALISM AND "bICULTURALI SM" 
IN RECENT YEARS, AT LEAST AMONG A MAJORITY OF LEGISLATORS, WHO HAVE 

ADOPTED GOVERNMENT POLICIES WHICH SEEM ACTUALLY TO PROMOTE LINGUISTIC 

,,,0 i.Ul.cJ \L ■•.I.P/.A.Ml: .-1, MLICILS ' MCH AS l.ll: ..■,(;: Mi.'N 'JF '!J:mjAl/ 

"t-;icuLrij; /\l" :"..'":i.iCAi'iuw ,'.!vD lORKicN I a;;6ijam-: CAM.ors. 

Although the subjlct of the immediate economic impact of immi- 
gration RLCl£IVES GREAT ATTl^NTION, ASSIMILATION TO FUNDAMENTAL AMERICAN 
public values and INSTITUTIONS MAY BE OF FAR HCRE IMPORTANCE TO THE 
FUTURE OF THE UNITED STATES. If IMMIGRATION IS CONTINUED AT A HIGH 
LEVEL AND YET A SUBSTANTIAL PORTION OF THE rJtWCOMERS AND THEIR 
descendants do not ASSIMILATE, THEY MAY CREATE IN AMERICA SOME OF 
THE SOCIAL, POLITICAL AND ECONOMIC PROBLEMS WHICH EXISTED IN THE 
COUNTRY wnCH THEY HAVE CHOSEN TO DEPART. If LINGUISTIC AND 
CULTURAL SEPARATISM RISE ABOVE A CERTAIN LEVEL, THE UNITY AND POLITI- 
CAL STABILITY OF THE NATION WILL IN TIME BE SERIOUSLY ERODED. 

MkAT, THEN, SHOULD BE THE DIRECTION OF N'EW IMMIGRATION AND REFUGEE 
POLICIES? I DISCUSSED THIS ISSUE IN MORE DETAIL IN MY SuPPLEMEUTAL 

Statement filed with the Select Commission's Final Report. Here I 

SMALL MERELY ITEMIZE A FEW KEY ELEMENTS OF MY MOST CURRENT THINKING 
ON THIS ISSUE: AN ABSOLUTE ANNUAL CEILING ON TOTAL I.'-.MIGRANT AND 
REFUGEE ADMISSIONS; A SEPARATE ANNUAL CEILK.'G FOR REFUGi:!-: FLOW; 

mainte:;ance of the per-country ceili!;g; reduction of ir„--,iGRATioN 

BY RELATIVES OF U.S. CITIZFNS AND PE.^MA'.ENT RESID.NTS; STIECTION OF 
INDLr;.;.'DENT OR "seed category" IM.-HGRANTS on THE BASIS OF TPADES WHICH 

v.cui D p;":;ij-"iT the U.S. economy or culture, rRorECT American workers, 

. 'O EASE ASSI.-.ILAT ION (iNCIUDlNG ,LF:HAPS SOME FORM OF PRF.FE^ENCE FOR 



TfluSE Wli'H FnGIISH CC'.PKTHfJCE) J AND FINALLY^ FLIMINATICN OF I'tDFRAL 

poi iciES ,;m!ch :::;ccuragf LiK'Guisnc and cji.ti-'RAL separai'Ion. 

We are aware that throughout the world there constant pressures 

AND disruptions WHICH CAUSE PEOPLE TO SEEK OUR SHORES. We AS 

a nation are proud that this is the case, and i am sure that we 
all wish we could take within our borders all that wish to come. 
That is clearly impossible. The refugee figure is growing extremely 
RAPIDLY. Last year there were 13 million. This year 16 million. 
And the immigrant demand also continues to grow. 

We must be clear and firm on how many people may enter. It is 
only fair to those who are already here, to our own economic 

GROWTH, and to THE NEEDS OF OUR COUNTRY. I BELIEVE THAT A SEPARATE 
annual CEILING SHOULD BE SET FOR REFUGEES. REFUGEES ARE QUITE 
DIFFERENT THAN IMMIGRANTS. REFUGEES COME SINCE THEY FEAR PERSECUTION 
BECAUSE OF THEIR POLITICAL BELIEFS OR THEIR SOCIAL OR ETHNIC CASTE. 
We OPEN OUR DOORS TO THEM FOR HUMANITARIAN PURPOSES AND ALSO AS A 

recognition that we as a country have a democratic tradition which 
permits people of different beliefs, ideas, and ethnic backgrounds 
to come and participate fully in the life of our country. our 
immigration policy traditionally has been based on viewing our 
land as one of economic opportunity seeking out persons who will 
contribute their own special skills to our country's growth. 

At present over 94 percent of all immigrants who enter the 
United States come as part of the family reunification preferences 
established under our immigration law. i understand the importance 
of the family unit, but our immigration act is intended as one of 
economic opportunity to relate to the needs and capabilities of 

MANY COUNTRIES AND MANY PEOPLES THROUGHOUT THE WORLD. ThE OVER- 
whelming dominance of family reunification in practice goes beyond 
these basic purposes and limits our receptivity and breadth of outreach. 

"New seed" immigrants are those who can make the maximum 
contribution to our country. given the great many who wish to come 

HERE, THE SELECTION PROCESS IS A DIFFICULT ONE. AnD STILL WE 
DO NOT KNOW ENOUGH TO PREDICT WHO IN THE LONG RUN WILL MAKE THE 
MAXIMUM CONTRIBUTION TO OUR COUNTRY. BuT IT IS NOT INAPPROPRIATE 
TO TRY TO ACCEPT THOSE WHO ARE LIKELY TO MOVE RAPIDLY AND EASILY 



8 



INTO OUR POLITICAL^ ECONOMIC AND COMMUNITY LIFE AND TO MAKE A MAXIMUM 
CONTRIBUTION TO IT. 

In ADDITION, THE U.S. SHOULD IMPROVE ITS ENFORCEMENT CAPABILITY. 
The RECOMMENDATIONS OF THE SELECT COMMISSION IN THIS AREA SHOULD BE 
CAREFULLY CONSIDERED. I FEEL STRONGLY THAT THE NEW ENFORCEMENT PROGRAM 
MUST INCLUDE SANCTIONS AGAINST EMPLOYERS WHO HIRE AND EXPLOIT ILLEGAL 
ALIENS^ PLUS SOME NEW METHOD TO VERIFY WORK AUTHORIZATION. We MUST 
PRESENT A NEW AND SECURE SYSTEM TO ENSURE THAT JOB APPLICANTS ARE 
AUTHORIZED TO WORK LEGALLY IN THE U.S. We OWE THAT, NOT ONLY TO 
THOSE WHO COME LEGALLY AND TO OUR CITIZENS WHO ARE SEEKING WORK IN THIS 
COUNTRY, BUT ALSO TO THE EMPLOYERS WHO HIRE THEM. AmONG THE SEVERAL 
SUGGESTIONS PRESENTED THUS FAR IS ONE TO OBTAIN A SECURE, COUNTERFEIT- 
RESISTANT TYPE OF IDENTIFICATION PERMIT FOR ALL WORKERS, ONE THAT 
WOULD NOT BE REQUIRED TO BE CARRIED ON THE PERSON, BUT WHICH WOULD 
BE PRESENTED ONLY AT THE TIME OF SEEKING EMPLOYMENT. ThE PERMIT, 
IF USED, MIGHT SIMPLY SAY, "I AM AUTHORIZED TO WORK AND BE EMPLOYED 

IN THE United States of America." It is also possible that work 

AUTHORITY INFORMATION COULD BE ENTERED INTO A DATA BANK SUCH AS 
IS USED FOR CREDIT CARDS. ThE EMPLOYER WOULD PROCESS THE NUMBER 

CONTAINED ON THE CARD AND THE ONLY RESPONSE RETURNED IS THAT THE 

APPLICANT IS "clear" OR "NOT CLEAR" FOR EMPLOYMENT. At PRESENT 

THE Social Security card, which is widely used, is also widely 

ABUSED. As efforts are BEING MADE TO UPGRADE THE SECURITY OF THAT 

card, it may be that it could also be used in connection with such 
an employer sanction-work authorization program. 

Whichever method is chosen, it is crucial that we send out a 
signal to the world that in order to obtain employment in the united 
States one needs to obtain and present evidence of valid work 
authorization. 

Once we have a program which has been shown to be effective 
in substantially controlling illegal immigration, a 'legalization'' 

OR AMNESTY PROGRAM WOULD SEEM APPROPRIATE. We WOULD THEN HAVE MUCH 
MORE EFFECTIVE WAYS OF EXPENDING OUR LIMITED ENFORCEMENT DOLLARS 
THAN IN THE ATTEMPT TO DETERMINE THE LEGALITY OF LONG TERM RESIDENTS 
WHO HAD MANAGED TO REMAIN IN THE U.S. DESPITE EMPLOYER SANCTIONS. 



In addition to reducing the '"pull" of U.S. employment^ we 

SHOULD try to CHANGE THE CONDITIONS ABROAD WHICH "PUSH" PEOPLE TOWARD 
OUR BORDERS, ThAT WOULD BE ACCOMPLISHED BY ASSISTING PEOPLE TO IMPROVE 
THE QUALITY OF LIFE IN THEIR OWN COUNTRY. In THIS EFFORT^ THE BEST 
GIFT OF THE HEART WHICH THE U.S. COULD PROVIDE WOULD BE THE CLEAR 
COMMUNICATION OF THE BASIS FOR OUR SUCCESS. FUOANCIAL AID BY 
ITSELF IT FREQUENTLY INEFFECTIVE^ OFTEN BECAUSE OF THE SAME 
GOVERNMENT POLICIES WHICH ARE RESPONSIBLE FOR THE ECONOMIC PROBLEMS. 
It IS NO COINCIDENCE THAT AMERICA HAS BEEN A SYMBOL OF BOTH FREEDOM 
AND PROSPERITY. ThESE TWO ARE INTIMATELY CONNECTED AND BOTH REST 
ON CERTAIN TRADITIONAL VALUES AND CULTURAL TRAITS. ThIS IS A THEME 
WHICH SHOULD BE FULLY DEVELOPED AND COMMUNICATED TO THE WORLD IN A 
MUCH MORE EFFECTIVE WAY THAN WE HAVE BEEN ABLE TO DO TO DATE. 

As I HAVE STATED IMMIGRATION AND REFUGEE POLICY REFORM IS AN 
EMOTIONALLY CHARGED ISSUEy FRAUGHT WITH PERILS^ BUT IT IS IMPERATIVE 
FOR THE SAKE OF AmERICA's FUTURE THAT NEEDED REFORMS BE ACCOMPLISHED, 

Chairman Mazzoli and L and the ranking members of the two Subcommittees^ 
Senator Kennedy and Congressman Fish^ and others on our Subcommittees^ 
are eager to hear from those who have studied this question or have 

STRONG FEELINGS ABOUT IT. We WILL DO SO IN THE RECOGNITION THAT WE 
ARE AN OPEN SOCIETY BOTH WITH RESPECT TO THOSE WHO COME AND THOSE 
WHO ARE HERE WHO WISH TO PARTICIPATE IN THE POLITICAL DEBATE. 



83-514 0-81 



10 



STATEMENT BY SENATOR STROM THURMOND (R-SC) BEFORE THE SUBCOMMITTEE 
ON IMMIGRATION AND REFUGEE POLICY REFERENCE HEARINGS ON THE 
FINAL REPORT OF THE SELECT COMMISSION ON IMMIGRATION AND 
REFUGEE POLICY, MAY 5, 1981, ROOM 2228, 2:00 P.M. 

MR. CHAIRMAN: 

First, I want to congratulate you and the other members 
of the Senate Judiciary Committee, Senator Kennedy, Senator 
Mathias, and Senator DeConcini for serving on the Select 
Commission these past two years. You have dedicated many 
hours of hard work to this most important area of legal 
and foreign policy. I know all Members of the Senate appre- 
ciate your efforts. 

I should also thank on behalf of the Senate the Chairman 
of the House Subcommittee, Mr. Mazzoli, and the other House 
Members, as well as the public members of the Select Commission 
for their time and energies in this endeavor. 

Mr. Chairman, I welcome the beginning of these joint 
hearings on the Select Commission's final report. As you 
know, I am vitally interested in the area of immigration and 
refugee policy. As the ranking member of the Subcommittee 
on Immigration and Refugee Policy, and as Chairman of the 
full Committee, I want to assure members that these matters 
will receive prompt and full attention in the Senate Judiciary 
Committee. 

The scope of the Select Commission's report was broad, 
but comprehensive. Some of the recommendations have my full 
support, while others will be the subject of considerable 
debate and review by both committees of the House and 
Senate. There are a number of important issues such as 
the creation of employee sanctions, legalization of certain 
illegal aliens now in the United States, increases in border 
enforcement, and the use of counterfeit-resistant cards for 
identification purposes that deserve our attention. 



11 



In addition, the Congress must address the important 
issue of immigrant and non- immigrant admissions on an annual 
basis. The number at which a ceiling for admissions shall be 
placed and the criteria for those who will be permitted to 
enter must be established with the best interests of the 
United States in mind, while fully recognizing the need for 
an open, but fair admission policy for aliens. 

Mr. Chairman-, our experiences of the last few years with 
great numbers of political refugees and others seeking asylum 
in the United States mandate that the appropriate laws, such 
as the Refugee Act of 1980, be amended to deal decisively with 
these emergency situations. Federal financing of refugees 
must be limited to a period that offers the most good, but 
does not become another Federal welfare program. 

All of these objectives can be resolved, I believe, in 
a way that will gain the support of the American people, yet 
preserve our traditions for being a great Country capable of 
assimilating peoples of other nations and cultures. 

I look forward to working with all of you on these matters 
and I welcome our public witnesses to the Committee this afternoon. 



12 

Senator Simpson. This is a joint Congressional hearing. I think 
you'll find that such a procedure is nearly unprecedented. I under- 
stand the last such hearing was some 30 years ago, and then both 
Houses of Congress were controlled by my good colleagues on the 
other side of the aisle. Such is not the case at present. 

Chairman Mazzoli and I trust that the fact that we are able to 
work together so closely on this issue despite our differing party 
affiliations, will indeed clearly demonstrate the absolute necessity 
for a bipartisan revision of our Nation's immigration and refugee 
policy. Now each legislative body is fully aware of that. 

We also believe that the joint hearing process and the close 
consultations between the two Houses will lead us to the develop- 
ment and enactment of legislative reforms which are so critically 
needed in this country. 

These initial hearings are rather singly intended to obtain public 
response to the final report of the Select Commission on Immigra- 
tion and Refugee Policy. We hope by that procedure to learn more 
of the nature of immigration and refugee policies, and also to 
assess the political reality and environment in which the coming 
debate will be conducted. 

Our goal, of course, is to develop policies and specific legislative 
proposals which will both satisfy the needs and interests of the 
American people and have a strong basis on those ideas which can 
be successfully enacted into law. Shakespeare would have said, 
"Aye, there's the rub." 

Once we have completed these general hearings, we should be in 
a much better position to determine what hearings will be conduct- 
ed on particular issues in the future and, with what witnesses. We 
certainly anticipate a full response from our congressional col- 
leagues, many of whom wished to testify today. 

After these hearings we will determine what legislative strate- 
gies will be most appropriate to meet our goals of formulating very 
substantive reform which will be based as I say, on the political 
realities faced by our colleagues on both sides of the aisle. 

I am greatly looking forward to working with Chairman Mazzoli. 
I have come to have a great regard and personal respect for him 
since I met him early in my first months here. I think we will 
work well together. He has been extraordinarily supportive and 
cooperative during this hearing. 

And I want to pay particular respect to the ranking member of 
this subcommittee. Senator Ted Kennedy, who has been deeply 
involved in this issue during his entire time in the U.S. Senate. He 
chaired this subcommittee for many years. It was of such import to 
him that when he became chairman he pulled this issue into the 
full committee instead of delegating it to a subcommittee. He has 
extended full cooperation and courtesy. 

I enjoyed my service on the Select Commission on Immigration 
and Refugee Policy. To call it a unique experience would be a great 
understatement. "The Commissioners were a rather diverse and 
determined group indeed, with a very fine staff, and I pay tribute 
to that staff at this time. It was my honor and privilege to be a 
member of the Commission. 

The leadoff hitter in today's batting order will be the Chairman 
of the Select Commission, Father Ted Hesburgh. Father Hesburgh 



13 

did a most extraordinary job in that capacity, a true humanitarian 
and a man who gives much of himself to any issue in which he 
becomes involved. Without his innate skills of reconciliation, com- 
passion and direction, the task would have been long and labored. 

During the next 2 years, this Congress will have an extraordi- 
nary opportunity to perform its function by reforming the immi- 
gration and refugee policy of the United States. I just don't believe 
that public awareness, sensitivity and interest in this issue has 
ever been at such high level. The 2-year effort of the Select Com- 
mission will be serving us as a basis for discussion and legislation 
for many years to come. It was the most ambitious project of its 
kind in over 50 years. 

I am about to use up the final 2 minutes of my alloted 5— don't 
worry, I won't go on at great lengths. Several things we do know. 
The current flow of immigrants and refugees to the United States 
is out of control. We do not know how many people enter each 
year; nor can we control how many will come. The total number of 
illegal immigrants cannot be precisely determined. This provides 
evidence to our citizens that our immigration laws are being flout- 
ed and ignored. 

The Select Commission made certain suggestions and proposals. 
We will pursue some of those. We will listen. We will also listen 
carefully to those who feel very threatened or ignored by the 
recommendations of this Commission. 

The fundamental obligation of this country and the very reason 
for its existence is indeed to promote the national interest. That is 
our long-term goal. 

Immigration policy is a perilous minefield of emotionally charged 
issues. We have already found that. One cannot consider any dis- 
cussion without reflecting upon one's own ancestors, and about 
oneself. It brings into question the image of America's past, the 
language on the Statue of Liberty, an assessment of our future, and 
most importantly, where we go from here. 

But there is a clear consensus that reform is required. Some 
restatement of where we stand must be presented. It is imperative, 
I think, that the debates concerning this needed reform be conduct- 
ed in an atmosphere of calm, compassion, and very careful delib- 
eration, recognizing the difficulty of the question and the earnest- 
ness of those who speak to it. 

There will be a lot of room for discussion, and I and the members 
of the Senate subcommittee and the House subcommittee are eager 
to hear from those who have studied the question and have deep 
and strong feelings. We will hear this testimony in recognition that 
we are an open society, both with respect to those who come to our 
shores and those who are here wishing to participate in this politi- 
cal debate. 

Reforms will be accomplished; I think they must be. Chairman 
Mazzoli and I are determined that they will be enacted, and fairly 
so. And with that I would recognize my cochairman, Congressman 
Ron Mazzoli of Kentucky. 

Representative Mazzoli. Mr. Chairman, thank you very much. 
With your permission, I will have my lengthier statement made a 
part of the record and lead off with just a very few comments 
before recognizing my colleagues, whom I thank very much for 



14 

departing one of the most important debates of the year to join us 
today. 

Let me say that it has been a great pleasure to work with 
Senator Simpson. I noted today his quotation of the bard, and I say 
how can you have anything but admiration for a Wyoming cowboy 
who quotes Shakespeare? He is a very interesting and colorful 
gentleman and a very astute master of the legislative art. He is a 
person who has been at this point one of the leaders in the Nation 
in trying to reform and refresh and modernize our Nation's refugee 
and immigration policies. 

I served in a very peripheral capacity in the work of the Commis- 
sion. My friend, whom I will speak about momentarily from South 
Bend, Ind., was nice enough to suggest to my chairman that I be 
assigned in a sense indirectly to the Commission before I really 
took position as chairman of the subcommittee. It therefore gave 
me a chance to sit in on two separate meetings of the Commission, 
to meet its personnel, to see how it operated and functioned. 

And for those of you who may not have attended the sessions, 
though I'm sure many of you did, the Commission, men and women 
from all parts of the country, approached their jobs with great 
diligence and seriousness of purpose. And I think that the report 
before us, Mr. Chairman, reflects that. It is comprehensive. It deals 
with thorny and politically very explosive issues, but it deals with 
them in an evenhanded and sensible fashion. 

The report that the Commission has filed, which is the first 
report of its kind since the early 1900's, will as that report did, 
touch off a national debate, which I think is healthy and necessary, 
and will lead to what we hope are much more constructive solutions 
than were the result of that earlier report. 

Let me commend the gentleman from Wyoming, our chairman 
today, and his staff who have just been wonderful to work with in 
setting up these meetings. Senator Simpson only alluded to the 
difficulty. It has been nothing but a minefield of its own to try to 
work with two committees getting all the logistics worked out, and 
the other plans. 

So I want to thank Al and his people for having been thoroughly 
delightful to work with in setting up today's meeting. 

I hope today's meeting is more than just a meeting of two coni- 
mittees. I hope that the people who are here view this to be what it 
is meant to be: An indication of the kind of congeniality and good 
chemistry that exists between our two panels, an indication clearly 
of the devotion that we both have to getting something out of the 
Congress and not have this Commission report simply gather dust. 

So Mr. Chairman, I want to thank you for having put at our 
disposal all of your good offices, and we thank you. 

Finally, let me pay tribute to the gentleman who is our leadoff 
witness today, whose path and mine have intertwined for the last 
30 years. Father Hesburgh became president of the University of 
Notre Dame during my sophomore year, 1952. And to show you 
how the circle closes, we have a son who is a sophomore at Notre 
Dame in 1982. 

So this 30-year period, three decades, has been extremely busy, 
one in which Father Hesburgh has shown in education and reli- 
gious matters and governmental matters a sense of leadership 



15 

which I think is striking. It certainly is a great tribute to the 
congregation of Holy Cross and to the University of Notre Dame. 

I would just like to add as Senator Simpson has said, that there 
has been a leadership shown here which is rare and uncommon It 
is only by virtue of that kind of reconciliation and leadership that 
we are where we are today. 

So I want to thank you, Father, for taking time out of your 
blistering schedule to be with us today. 

Mr. Chairman, that ends my remarks and thank you very much. 

Senator Simpson. Thank you so much, Chairman Mazzoli. 

[The opening statement of Representative Mazzoli follows:] 



16 



Opening Statement of 

Honorable Romano L. Mazzoli 

Chairman 

Subcommittee on Immigration, Refugees, and 

International Law 

May 5. I98I 



Chairman Simpson, colleagues from the House Subcommittee, 

AND colleagues FROM THE SENATE SUBCOMMITTEE: 

The REPORT OF THE SELECT COMMISSION ON IMMIGRATION AND 

Refugee Policy, created by Congress, constitutes the first 

MAJOR effort since 1911 BY A JOINT CoNGRESSIONAL/PrESIDENTIAL 

Commission to examine the immigration and refugee laws of the 
United States. 

Historically, sue: repop>ts have generated a major re- 
thinking IN Congress and across the country of the law. I 

EXPECT this report WILL HAVE THE SAME EFFECT. 

Our nation's immigration and refugee policy ap'^ects the 

LIVES OF millions OF HUMAN BEINGS, NOT JUST HERE IN THE UnITED 

States, but throughout the world. Changes in these policies 

AND laws have MORAL, POLITICAL, ECONOMIC AND SOCIAL IMPLICATIONS. 

both here at home and abroad. therefore, these changes must 

be approached sensitively and carefully. 

Today there is a general dissatisfaction in the 'jnited 
States with our present immigration and refugee policies. As 
Chairman of the House Subcommittee with jurisdiction over 



17 



THESE POLICIES^ I HAVE BEEN SURPRISED AND EVEN DISMAYED TO 
LEARN FIRSTHAND IN WHAT LOW ESTEEM THE PRESENT LAW IS HELD BY 
MANY OF MY COLLEAGUES AND LARGE SEGMENTS OF THE AMERICAN 
PEOPLE. 

It IS, THEREFORE, MOST SUITABLE THAT THERE BE RECOM- 
MENDATIONS - LIKE THAT MADE BY THE SELECT COMMISSION UNDER THE 
DISTINGUISHED LEADERSHIP OF MY FRIEND AND PRESIDENT OF MY ALMA 

MATER, Notre Dame, Father Theodore Hesburgh - to restructure 

today's IMMIGRATION AND REFUGEE POLICY, 

Let me take this opportunity to complement and commend 
Father Ted and all his colleagues - some of whom sit with us 
TODAY AS Members of these two Subcommittees - for their diligent 
labor and the excellent work product they issued. 

The Select Commission has performed its task admirably. 
Now it is time for Congress to act. 

We have before us the report of the Select Commission and 
several alternatives offered by Congressional colleagues and 
by interest groups. Soon we will have before us the recom- 
mendations and reactions of the Administration. 

These three days of hearings are only a beginning of the 

WORK these two SUBCOMMITTEES AND, ULTIMATELY, THE CONGRESS 
FACE IN THE MONTHS AHEAD IN CRAFTING AN EQUITABLE, WORKABLE, 
ENFORCEABLE AND REASONABLE LAW. 

No SUCH LAW CAN BE PASSED EXCEPT IN A SPIRIT OP COOPER- 
ATION AMONG AND BETWEEN HoUSE AND SENATE, LEGISLATIVE AND 



18 



Executive Branches, Democrat and Republican, liberal and 

CONSERVATIVE. ThE ISSUES ARE TOO DIFFICULT AND THE POSSIBLE 
SOLUTIONS TOO CONTROVERSIAL FOR US TO BE ABLE TO' ACHIEVE 
ANYTHING THROUGH CONFLICT. COOPERATION HAS TO BE OUR METHOD 
AND OUR GOAL. OTHERWISE, THE WHOLE EXERCISE WILL BE FOR 
NAUGHT, 

These initial hearings are designed to elicit a wide 
range of viewpoints on the select commission report. because 
of time limitations, our joint panels could not accommodate 
every person and group who asked to appear. 

In THIS CONNECTION, IT SHOULD BE KEPT IN MIND THAT MANY 

more hearings will be conducted in the months ahead in the 
Senate and the House separately and, perhaps, even in the 

JOINT arrangements WE WILL USE TODAY. 

Those who could not be accommodated in this first round 
OF hearings will be given every chance to advance their 
positions and views. 

One further word about the position of the Administration 

on the issues raised in the '^elect -"^^imission ^e^ort is 
necessary. 

President Reagan has :reathd a -^sk Force headed bv 
Attorney General William French Smith, to which representatives 

FROM all the departments AND AGENCIES OF ^HE ExECUTIVF '^•RANCH 
HAVE BEEN APPOINTED. TO RECOMMEND IMMIGRATION ■'VND REs^UGEE 

POLICIES THE Administration should ^ut^poRT ^H^, op course, 
those it should reject or reformulate, -HAT Task "^orce is 
just about to report ro the Pres: dent, 



19 



I HOPE THAT "^R. ^EAGAN WILl SOON BE ABLE TO REACH FINAL 
POSITIONS ON THESE DIFFICULT ISSUES. HlS VIEWS WILL NOT BIND 
OR CONTROL THE CoNGRESS. BUT, r^lOST ASSUREDLY, THEY WILL BE 
HELPFUL TO US IN OUR DELIBERATIONS. 

In CLOSING. I WANT TO THANK SENATOR ':^1MPS0N AND HIS 

Senate colleagues for hosting our first joint hearing. Tmese 
are unusual, and a few eyebrows were raised when we proposed 
the idea of joint hearings; however. we were determined ro 
demonstrate to our colleagues and the american ^eo^le that 
we, and our two panels, and our two houses, intend to tackle 
these difficult challenges presented to us in a spirit of 
cooperation and colleg i al ity . 

i want to thank also my colleagues, and chairman 
Peter Rod i no of the full Judiciary Committee -or their 

SUPPORTIVE assistance IN ARRANGING THESE lOINT HEARINGS. 

I LOOK FORWARD TO HEARING FROM THE WITNESSES WHO WILL BE 
APPEARING BEFORE US, AND LOOK FORWARD TO WORKING WITH THE 

OTHER Members of the Subcommittees in this venture. 



20 

Senator Simpson. You weren't here, Ted, when I gave all the 
good words about you. Should I rerun those comments? 

Senator Kennedy. I haven't heard those very often lately. 

Senator Simpson. Let me just introduce the ranking member of 
this subcommittee, who, with his staff, has been most extraordinar- 
ily cooperative and helpful. You must realize the true intensity of 
the interest of this gentleman, who chaired this subcommittee for 
many, many years and then took it to the full committee level 
when he became chairman of the Judiciary Committee. His abso- 
lute dedication to the issue is without parallel in the Congress. 
Senator Kennedy. 

OPENING STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. 
SENATOR FROM THE STATE OF MASSUCHUSETTS 

Senator Kennedy. Thank you very much, Mr. Chairman. 

I too want to express on behalf of all the minority members of 
this subcommittee how appreciative we are over your efforts and 
Congressman Mazzoli's in trying to bring some important and 
meaningful and compassionate as well as long-term reforms to our 
immigration laws. I think now is the time, in the words of Martin 
Luther King from a Birmingham jail, when he was talking about 
progress in another important area of human rights. Now is the 
time for this Congress to face this issue and to come to grips with 
it. 

I think we are extremely fortunate at this time to have the kind 
of materials that have been developed in the form of the Select 
Commission's report and recommendations. It has been three dec- 
ades since we have thoroughly reviewed our immigration statue 
which was fashioned over 50 years ago. 

Today these years of neglect have come to an end. In launching 
these joint hearings we are moving down the road to immigration 
reform started 2 years ago with the establishment of the Select 
Commission on Immigration and Refugee Policy. For the first time 
since 1953, a high-level Commission has studied all aspects of our 
immigration laws. 

Whether we are largely supportive or critical of the Select Com- 
mission's findings and recommendations, we can all agree that its 
report represents a long-needed catalyst for action. I believe these 
joint hearings symbolize the importance we attach to this work of 
the Select Commission, and will signal the urgency we feel over the 
need to move on immigration reform. 

By neglecting immigration for so many years, Congress allowed 
one of the country's oldest traditions to become one of our most 
controversial and misunderstood issues. Instead of embracing our 
immigrant heritage, many Americans have come to fear it. 

In part, this reflects the mood of our times, and our preoccupa- 
tion with stubborn and increasingly critical challenges at home 
and abroad. But part of the problem derives as well from our 
immigration law, which is out of touch with the times and out of 
control. 

To restore faith in our immigration laws — to establish an immi- 
gration policy that is both in America's longrun interests as well as 
faithful to our humanitarian traditions — we must move on the 
proposals offered by the Select Commission. 



21 

I am confident that with the bipartisan spirit already demon- 
strated in the arrangement of these joint hearings — and with the 
cooperation already evident in the actions of our subcommittee 
chairmen — we will see some of the Select Commission's proposals 
translated into law in this Congress. 

So I agree that we now have the source material — the Select 
Commission's report — which I think we as a committee should be 
envious of as we start our consideration of an area of public policy 
of enormous importance and interest — an issue of public policy 
which in so many instances is misunderstood, and where there has 
been so much emotion, but also an issue which touches at the fiber 
of this very Nation — our immigration policy and refugee policy. 

I think all of us on the Senate Judiciary Committee, including 
the minority members, feel that, as you have indicated so well, Mr. 
Chairman, that this is really a nonpartisan issue and the efforts 
that you have taken have been, speaking for the minority, one of 
fairness and consideration of all different viewpoints. I just want to 
indicate to you on behalf of all the Democrats a pledge and a desire 
to work closely with you to try to meet our responsibilities in a 
way which is going to respond to the central challenge of our time 
on this issue of immigration and undocumented aliens, the issues 
of amnesty and the issues of refugees. 

I thank you for your kind remarks, Mr. Chairman, and look 
forward to the work that lies ahead. 

Senator Simpson. Thank you so much, Senator Kennedy. I am 
appreciative. 

Now let me recognize the ranking member of the House subcom- 
mittee, Congressman Fish, who has labored in this particular field 
during his long and illustrious legislative career. He was also a 
most important and impressive member of the Select Commission. 
He met every task he was assigned, and he was most helpful to me 
£is a fellow Commissioner. I would introduce the ranking Republi- 
can of the House subcommittee, the Congressman from New York, 
Ham Fish. 

OPENING STATEMENT OF HON. HAMILTON FISH, A U.S. 
REPRESENTATIVE FROM NEW YORK 

Representative Fish. Thank you very much, Mr. Chairman. I 
want to compliment both chairmen of the subcommittees for orga- 
nizing these joint hearings on the report of the Select Commission 
on Immigration and Refugee Policy. 

I believe that if we are to realize any tangible results from the 
labors of the 16 Commissioners and particularly the Chairman of 
the Commission for the past 2 years, that both Houses of the 
Congress must achieve a high level of general appreciation and 
understanding of the immigration and refugee problems that face 
us. These issues are extremely complex and not given to easy 
solutions. 

We are also aware that whatever actions the Congress takes in 
these measures recommended to us will directly affect all segments 
of our society. 

Having served as a Commissioner involved in most of the delib- 
erations of the Commission, both formal and informal meetings, I 
want to commend first of all Father Ted, the Commission Chair- 



22 

man, and Dr. Larry Fuchs, the Executive Director, for having 
undertaken and accompHshed the most difficult task. Not since 
1965 have we had such an in-depth study of our immigration 
poHcies, and those familiar with immigration and refugee develop- 
ment since that year must agree that a comprehensive review was 
long overdue and that a consensus had to be reached to respond to 
dramatic changes that have occurred in the intervening 15 years. 

I, for one, would like to say that the Select Commission succeed- 
ed in identifying the issues and the problems that face us. As to 
the recommendations and conclusions of the Commission, some 
were specific and received the general support of the Commission- 
ers. Some of them, however, had to be deferred to the decision of 
the Congress, with the Commission limiting itself to a statement of 
principle. 

The joint hearings, which have been scheduled for the next 3 
days, will enable us who serve on the subcommittees dealing with 
immigration and refugee matters to review those recommendations 
which were adopted by the Commissioners. Even more importantly, 
I hope the witnesses will amplify Commission decisions and flesh 
out where possible those principles where specifics were left by the 
Commissioners to the wisdom of the Congress. I think that would 
be an enormous help for us, as we address those issues. 

Again I congratulate you, Mr. Chairman, and the chairman of 
my subcommittee, for organizing these hearings. 

Senator Simpson. Thank you. Let me recognize at this time 
Congressman Mazzoli. 

Representative Mazzoli. Mr. Chairman, thank you very much. I 
just think it ought to be noted that every one of our Members is 
here today. This has characterized the work of this panel the entire 
time that I have had the privilege of chairing it. It is remarkable. 
We even showed up en masse at the first day of our recent recess, 
the so-called Easter work period. I really want to thank my friends. 

Second, I think it ought to be noted too that we have another 
Notre Dame man here. Congressman Dan Lungren, who is a gradu- 
ate of the University of Notre Dame. The panel, despite what Ham 
Fish says, wasn't stacked against any other college. It just hap- 
pened to work out this way. 

Thank you, Mr. Chairman. 

Senator Simpson. Thank you very much, and we will have our 
work cut out for us when we show up over on your side of the 
Capitol. We will all be there, obviously. 

Let me in one swift moment of time recognize Dr. Larry Fuchs, 
who served as our Executive Director of the Commission, and is 
here today. It would be very untoward not to recognize that he was 
the very central core of the staff operation. His services were 
characterized in three words: Patience, patience, patience. Thank 
you. 

Now to our first witness. The biographical information on this 
gentleman would overflow the table. I will go no further, just to 
say that I have come to know this man during these past 2 years. 
He is not only an extraordinary public figure; he is a most extraor- 
dinary private individual and a most remarkable gentleman, a 
marvelous counselor and reconciler of this rambunctious Select 
Commission. Let me just recognize and express deep appreciation 



23 

in that you changed your schedule to be here, Father Ted. Thank 
you. 

STATEMENT OF REV. THEODORE HESBURGH, CHAIRMAN, 
SELECT COMMISSION ON IMMIGRATION AND REFUGEE 
POLICY, ACCOMPANIED BY LAWRENCE H. FUCHS, EXECU- 
TIVE DIRECTOR OF THE COMMISSION, AND RALPH THOMAS, 
DEPUTY DIRECTOR OF THE COMMISSION 

Reverend Hesburgh. Senator Simpson, Congressman Mazzoli, 
Senator Kennedy, Congresspersons Hall, Schroeder, Frank, Fish, 
Lungren, and McCollum, thank you very much for the privilege of 
being with you here today as opening witness. 

My name is Theodore M. Hesburgh and I am here as the former 
Chairman of the Select Commission on Immigration and Refugee 
Policy, which expired on April 30, a few days ago. 

I have with me on my left Dr. Lawrence H. Fuchs, who served as 
the Executive Director of the Commission, and Dr. Ralph Thomas, 
his deputy. 

I must say to all of you that I have never seen a Washington 
staff worked harder than this staff worked, as you will see later 
from some of the work that sits here on the table, two 1,000-page 
volumes. As the final days approached, in order to get these out, 
the staff actually worked 40 hours in a row without surcease. That 
kind of dedication and devotion made all of us on the Commission 
look very good. 

I should also say at this point how grateful I am to the other 15 
members of this Select Commission, all of whom were dedicated, all 
of whom sacrificed themselves to go to hearings, to attend public 
meetings, to read mountains of paper and to give us their frank 
and honest and conscientious opinion on policy. 

Someone observed that almost half of our final report was taken 
up with special opinions of the various members of the Commis- 
sion. I thought that was all to the good because it reflected both 
the complexity of the issue, the honest difference of opinion that 
exists in so many of the areas we discussed, and the kind of total 
honesty of this Commission to say first of all, this is a report we 
endorse in the majority, but these are misgivings we might have 
about certain aspects of it. And I think it is a richer report because 
of that and I suspect that many of the opinions, minority opinions 
of individual members, will be reflected in the discussion as it 
emerges. 

Our Commission was unusual in two respects. First, it was initi- 
ated by the Congress, and one half of its membership was from the 
Congress on a bipartisan basis. Second, and a related point, it was 
intended not just to study a problem and to make general long- 
term recommendations, but to make specific recommendations to 
reform an extremely complicated law. It has been said on many 
occasions that the Immigration and Nationality Act is only second 
to the tax legislation in its complexity. 

Our Commission held 12 regional public hearings, mainly at 
ports of entry for immigrants, places like Baltimore, Miami, New 
Orleans, Los Angeles, San Francisco, et cetera. We conducted 24 
public consultations with experts. We sponsored a considerable 
amount of original research, and we systematically reviewed all 



24 

existing research. And after seven public Commission hearings, we 
reported our recommendations to the Congress and to the Presi- 
dent on February 27 of this year. 

Within the past week, you had deHvered to you the Select Com- 
mission's staff draft of a new Immigration and Nationality Act 
based on the recommendations of the Commission. This is the 
volume here. These particular volumes comprise untold hours of 
discussion and over 1,000 pages of recommendations, and I hope 
they will be useful in the further discussion that will issue from 
the two subcommittees. 

I strongly hope that the Members of Congress who served on the 
Commission officially, and Representative Mazzoli who participated 
in our deliberations in December and January when we took final 
votes on our report, will introduce this bill as a working bill. I 
know of no better way to get the executive branch, the Congress 
and the public generally to put this extremely important topic on 
their agenda than to have the particulars of a working bill to 
address. 

I thought it might be valuable to the Congress for you to have a 
clear picture of just how the Commission went about its business, 
and for the record, I would like to submit a work chart which 
depicts that very graphically over the 2 years of the Commission's 
life. Within the next 10 days you will receive an additional 11 
volumes completed by the staff last week as they worked through 
the nights of April 29 and 30 to ready this material for the print- 
ers. We have the staff recommendation here in this particular pile 
of volumes. 

Of the volumes you will receive, the first of them is most impor- 
tant and that is the volume right here. This is the why and how 
companion volume to the final Commission report. We call it a 
staff report. It is a supplement to the official final report of the 
Select Commission on Immigration and Refugee Policy, and it pro- 
vides a detailed analysis of the major recommendations made by 
the Commission and the implementation strategies and procedures 
for carrying them out. I believe this will be most useful to the staff 
and to the subcommittees. 

Now the final report, which is also here on the table, is in your 
hands. But the problems raised by immigration face every one of 
us and they will not go away; indeed, they will grow in intensity, I 
believe. 

Some among us, often moved by deeply religious values, ask the 
question, why should immigration be a problem? Why shouldn't 
people be free to move wherever they want to? We are all one 
species, all children of one God, and from the beginning of time 
human beings have been a curious migratory species. Why not let 
down the barrier of nation-states and permit people to move freely? 

The questions almost answer themselves. Immigration is a prob- 
lem because nearly all peoples believe in nationalism, in nation- 
states in which to maintain the integrity of national ideologies, 
institutions, and boundaries. We believe this in the United States, 
too, but not for narrow nationalistic purposes only, but also be- 
cause we believe that our Nation has become a symbol of the 
possibilities of freedom and the potentiality for justice in a world 
which sees little of either. 



25 

The existence of our Nation as a nation is tied to the realization 
of high goals for all of humanity. Our nationalism is not inconsist- 
ent with internationalism. In fact, the first of the three principles 
which undergird this Commission's important recommendations is 
the principle of international cooperation. As a nation, we cannot 
survive without international cooperation. We live in a constant 
state of interdependence. Consequently, the Select Commission has 
made several recommendations guided by that principle. 

The second of our important principles is the rule of law. To the 
Commission, the rule of law meant two things: First, enforcing the 
limits we set for immigration in a firm, unambiguous manner, and 
second, doing so with high standards of due process. Dozens of the 
Commission recommendations are guided by the principle of the 
rule of law. 

Our third principle was that of the open society and how few of 
them there are in today's world. By the open society we mean 
certain specific things. We mean that it is in the national interest 
of the United States to accept a reasonable number of immigrants 
and refugees each year to fulfill the U.S. policy goals regardless of 
the color, nationality, or the religion of those admitted. It also 
means that once admitted to this country, these people should be 
entitled to get on a fast track to citizenship under the protection of 
the U.S. Constitution and the laws of this land without discrimina- 
tion. 

The open society does not mean limitless immigration. Quantita- 
tive and qualitative limits are perfectly compatible with the con- 
cept of the open society as we understand them. 

Without first principles such as international cooperation, the 
rule of law and the open society, it will not be possible to bring 
about fundamental immigration reform. Our efforts and yours will 
be picked at by special interest groups. In a letter sent to me by 
President Gerald Ford, who is joining me and many distinguished 
citizens today in forming a Citizens Committee for Immigration 
Reform, he praised the work of the Select Commission, but he 
warned that we must guard against the parochialism and the 
demagoguery of so many special interest groups. 

We cannot defang, to use Senator Al Simpson's phrase, the emo- 
tionalism which surrounds this issue, not entirely. But we can 
recognize first principles and try our best to be guided by them. If 
these basic principles do not overcome the four horsemen of paro- 
chialism, xenophobic demagoguery, knee jerkism and perfection- 
ism, at least perhaps they will temper the debate and provide the 
necessary framework for getting on with the work in the end. 

Each of the major recommendations I will discuss this afternoon 
are interrelated, and I urge the Congress to take a comprehensive 
organic approach to a solution. For example, concentration on en- 
forcement should be matched with an equal emphasis on a sound 
immigration law. 

Of course the first subject on the minds of most persons who 
worry about immigration today is illegal immigration. This Com- 
mission not only recommended a more rational system for admit- 
ting immigrants legally and for the legalization as resident aliens 
of a large proportion of undocumented aliens now in the United 



83-514 0-81 



26 

States, but it firmly recommended many measures to enforce con- 
sistently, firmly and fairly the limits established by the law. 

There is no sense in pretending enforcement will work without 
demagnetizing that force which brings illegal aliens here, namely, 
economic opportunity, jobs. A centerpiece of the enforcement meas- 
ures recommended by the Commission would be an employer sanc- 
tions law with a simple, reliable, nondiscriminatory method of 
certifying employee eligibility that all of us would use when apply- 
ing for a new job. 

Would such a measure be worth the effort and cost and would it 
work? Thirteen members of the Commission believe that it would. 
Would such a measure discriminate against certain groups or be 
used to violate the privacy rights of Americans? While I under- 
stand the apprehensions of the many people who raise these ques- 
tions, these issues are of concern to me also, and I do strongly 
believe that the answer to this question is no. 

Employer sanctions is not a panacea, but it will take away the 
incentive for employers to hire illegal aliens and to demagnetize 
the magnet enough so that with comprehensive, target enforce- 
ment strategies we should be able to reduce the illegal migration to 
a relatively small number. 

This Commission does not want draconian measures at the bor- 
ders, ports of entry, or in the interior. Just the opposite. We made 
many recommendations to improve the professionalism of the Im- 
migration and Naturalization Service and to protect the rights of 
those who come in contact with its investigators, inspectors, and 
border patrol agents. But we know that without employer sanc- 
tions, enforcement efforts will not be effective. 

I would ask that those who sympathize with the aspirations and 
the plight of illegal aliens, and I count myself among those who 
worry this way, I would ask them to think about the aspirations of 
Americans who wages and standards are depressed by their pres- 
ence, and also to think about those aliens themselves, not the ones 
who slip into the system and make a decent living while they 
adjust to a fugitive life in the shadows, but also the ones who are 
victimized by unscrupulous employers, those who die in the desert, 
or in the ballast tanks of ships, and the ones who are waiting 
patiently in line for so many years to come to the United States 
through the normal legal immigration channels. 

For those who are apprehensive about discrimination resulting 
from the application of employer sanctions, I would point out that 
the only system that the Commission recommended would protect 
against discrimination more than at present because all persons 
eligible to work would have to identify themselves through a reli- 
able method of identification. Employers who turn someone away 
would not have the excuse that he or she looked or talked like an 
illegal alien. Under the employer sanctions law proposed, employ- 
ers would not be penalized if they happen to be fooled by the job 
applicant. 

I am also persuaded that concerns about the abuse of privacy are 
not warranted. What protects our society and individuals in it 
against the abuse of privacy is the existence of traditions, habits, 
and laws which sustain our 1st, 5th, and 14th amendment rights 
concerning freedom and due process. These constitute a national 



27 

will to resist governmental control or private misuse of personal 
information. 

In fact, the employer eligibility system should be the occasion to 
make explicit in legislative language the privacy protections due 
individuals in our society. In this case there would be strict limita- 
tions on the use of the employer eligibility card and on the access 
to and use of the data base behind it. 

Effective enforcement would depend on one other major Commis- 
sion recommendation, which was also guided by the principle of 
the rule of law. We call it legalization. We unanimously recom- 
mended the legalization of a large proportion of the undocumented 
aliens now present in this country. We specified that persons 
should be eligible if they could show that they were here in the 
United States no later than January 1, 1980. That is the date when 
we first, as a Commission, began to talk about the possibility of 
legalization, and we did not wish that conversation to be an addi- 
tional magnet. I know that the Congress will pay particular atten- 
tion to the reasons which produced this unanimous vote. 

First, new enforcement efforts to curtail the future flow of illegal 
aliens, which the Commission said must be instituted if we are to 
have a legalization program, will depend for maximum effective- 
ness on the knowledge which can be produced only through a 
comprehensive legalization program that provides information 
about migration channels, smuggler practices, and the characteris- 
tics of the aliens themselves. 

Second, through the legalization we will learn for the first time 
the composition by national origin of illegal aliens and even be able 
to pinpoint the villages, towns. States, and provinces from which 
they come. That knowledge will be invaluable when we try to deal 
with migration pressures at the source through bilateral or inter- 
national cooperation. 

Third, by legalizing this group, the Immigration and Naturaliza- 
tion Service will be able to target its limited enforcement resources 
where they count, in stopping future flows, instead of the costly 
and ineffective cops-and-robber approach to catching people who 
have already learned how to avoid the authorities. 

Fourth, these persons, while more capable of evasion than new- 
comers, live in an underclass outside of the protection of the law. 
As such, they are prey to exploitation by employers who violate 
labor protection laws and other more serious criminal activity, 
undermining the rule of law for all of us, as well as depressing the 
wages and standards of some laborers. 

Fifth, legalization not only recognizes the fact that these people 
are already here, but that we will all benefit if they come out of 
the shadows and participate more fully in American life. 

Ironically, legalization may permit many aliens to return home 
more frequently to their countries of origin than they now can do. 
Rates of emigration or outmigration for most immigrants have 
been about 30 percent of immigration. For this group that would be 
higher once given a legal resident alien status in the United States, 
since they no longer would be subject to the hazards of crossing 
illegally when they return. 

No one has to fear that legalization will cost the United States 
anything. Fees will pay for the entire program. Only those aliens 



28 

who have a job and who can meet the public charge requirements 
will qualify. 

Some are asking why it is necessary to confer the status of 
resident alien on those who qualify for legalization. Why not, they 
ask, give them a temporary worker status and include them as part 
of a large scale guest worker program to be negotiated with inter- 
ested countries? 

The idea of a large temporary worker program is tremendously 
attractive. Perhaps a better word, though, would be "seductive." 
Economists predict a large shortfall of U.S. service and agricultural 
workers in the decades ahead. There are certainly hundreds of 
thousands of people in the Caribbean basin and in Latin American 
countries who would be happy to take those jobs as they become 
available. 

Some people believe that a large guest worker program might 
channel enough persons into the employ of ranchers, growers, gar- 
ment and other manufacturers to such an extent that employer 
sanctions and other enforcement measures would not be necessary. 

There is a superficial plausibility to this argument and the Com- 
mission gave it serious consideration for more than a year and a 
half. I can recall being very much entranced by it when I first 
joined the Commission. In the end, we were persuaded, after much 
study, that it would be a mistake to launch such a program. 

First, a large scale temporary worker program, say half a million 
or more a year, whether or not it included the newly legalized 
aliens already here, would have some limits which would have to 
be enforced. It wouldn't be a completely open program. Would the 
program be for single men only or agricultural employment only? 
For the Southwestern States only? For 6 months, or 8 months, or 
more in duration? Would individuals be able to renew their partici- 
pation in this program? 

Whatever the answers to these questions, the limits would have 
to be enforced. Without an employer sanction law and a reliable 
means of employee identification, the rule of law would be compro- 
mised extensively as aliens tried to slip the boundaries imposed by 
this program. 

The European experience is telling in this regard in that a very 
large proportion of guest workers became permanent guests. 

Second, it is difficult to turn off such a program once it gets 
started. A large scale program would build a dependency on foreign 
labor in certain sectors of the economy. Certain jobs would become 
identified with foreigners, putting at risk one aspect of the princi- 
ple of the open society, as I tried to define it a moment ago. 

In effect, a second class of aliens would have been established in 
our country who are not fully protected by the law and its entitle- 
ments and who could not participate effectively in mainstream 
institutions. And a large program without effective enforcement 
measures would stimulate new migration pressures in the long 
run, and again we have the specter of law disrespected, as it is 
now. 

Third, one of the seductive reasons for such a program is to 
accommodate the population pressures of other nations and thus 
achieve foreign policy objectives. But there are few things more 
dangerous to friendship between nations than to have a large body 



29 

of foreign nationals working in one country with a possibility of 
incidents being blown up by a demagogue in either country. 

Many have suggested that a guest worker program would be 
helpful to Mexico. Apart from the fact that no Mexican official 
represented that position to us in our conversations with them, we 
did not think it wise to propose a program with potentially harm- 
ful consequences to the United States as a whole. 

The Commission has been mindful of U.S. relations with Mexico 
and other countries as charged by Public Law 95-412. We know 
that it is in our national interest that Mexico be able to shape its 
own destiny as a prosperous and stable democracy. We know that 
Mexico to some extent relies on the safety valve of my migration to 
the United States, but we cannot shape an immigration policy for 
the world with 16 million refugees and with a worldwide backlog of 
more than 1 million persons registered with visa numbers to come 
to the United States, in response to one nation only. In fact, that 
would be inconsistent with the principle of the open society, which 
does not discriminate in the admission of immigrants and refugees 
on the basis of nationality or point of origin. 

However, Mexico is in many ways special, and we did make 
several recommendations consistent with that very principle, 
which will have the practical effect of increasing immigration from 
Mexico to some extent. We estimate at the outside about 700,000 of 
the 1 Va million persons who might avail themselves of the legaliza- 
tion process would be Mexican nationals, who would then be in a 
position to petition for their spouses and minor children to come to 
the United States. It is conceivable that as many as 250,000 Mexi- 
can spouses and/or minor children would be admitted, although 
the actual number is likely to be less. 

Such persons would, of course, have to wait in turn under the 
numerically restricted immigration totals imposed by the new law, 
but their admission to the United States, and that of other spouses 
and minor children of resident aliens, would be expedited by the 
emphasis which the Commission has placed on the reunification of 
immediate families. The modest increase recommended for legal 
immigration, which would facilitate both family reunification and 
independent immigration, is another recommendation which is 
likely at least in the near term, to increase immigration from 
Mexico slightly. 

Finally, the clearing of backlogs in conjunction with the intro- 
duction of the new system would also help Mexicans to some 
degree. 

I know there are persons who are wondering why the Commis- 
sion recommended an increase in legal immigration. The answer is 
straightforward but not simple. It is clearly in the interest of the 
United States to do so. Once again I will summarize our finding 
with respect to legal immigrants. 

Immigrants work hard, save and invest, and create more jobs 
than they take. Thus, they contribute to economic growth in the 
United States. It is true even for refugees, although the contribu- 
tion takes place after a longer period of adjustment. 

Immigrants rapidly pay back into the public coffers more than 
they take out when they arrive. 



30 

Immigrants strengthen our pool of younger and middle-aged 
workers, thus strengthening our social security system and enlarg- 
ing the U.S. manpower capabilities. 

Immigrants strengthen our ties with other nations. 

Immigrants strengthen our linguistic and cultural resources. 

Immigrants and their children embrace American ideals and 
public values rapidly and help to renew them. 

Immigrants give a brilliant demonstration to the world of the 
advantages of a free society. 

And finally, the children of immigrants, according to our studies, 
acculturate well to the American life and actually seem to be 
healthier and do better in school on the average than those of 
native-born Americans. 

In the face of all this, one might ask why the Commission was so 
timid in recommending a modest increase in legal immigration 
from 270,000 to 350,000 annually. One reason is that under the 
Refugee Act of 1980, whose fundamental principles we endorse, it 
is possible to admit more than the 50,000 refugees anticipated by 
that act as the normal annual flow. As you will recall, when that 
act was written they took an average of the immigrants coming 
annually over a past number of years. 

Because refugee situations are often emergencies, we need to 
provide flexibility to meet them. Therefore, we must be cautious on 
the number of numerically restricted immigrants we admit. 

A second reason is that some of our Commissioners believe that 
we should not increase the present ceilings at all until effective 
enforcement is in place, particularly against illegal immigration. In 
fact, four Commissioners voted against the increase in immigration 
levels for that very reason. The 12 who voted for it include many 
who are strong advocates of new, effective enforcement measures, 
but see the value of increasing immigration modestly at this time 
for the good that it will do to this country, and because the new 
system will help reduce pressures for illegal migration, even if 
slightly. 

If the flow of illegal immigration is substantially stemmed by 
employer sanctions, the total number of new entries to the United 
States would also decrease substantially, even with a slight in- 
crease in legal entrees. 

A third reason is that the largely incorrect but widely held 
perception that immigrants take away from rather than benefit 
our society is false. Because that perception is a social reality, 
though, one must be cautious about numbers. 

What will the numbers add up to if the Commission's recommen- 
dations are followed? If the committee adopts the recommenda- 
tions of the Select Commission, we can make population projections 
based on reasonable assumptions, including one about illegal immi- 
gration, which you will find discussed in two chapters of the staff 
report here on my left. 

The result is that the United States will achieve negative popula- 
tion growth at a level of 274 million persons by the year 2050, less 
than 70 years from now. That is based on a projection of an annual 
net immigration of 500,000, a reasonable and I believe perhaps 
conservative projection, as also explained in the staff report, which 
I hope the Congress will reprint since it goes into such detail with 



31 

respect to the background and the impHcations of the Commission's 
recommendations in our final report; 274 million does not strike 
me as high by any measure for the year 2050. The United States, if 
it followed those recommendations, would go from having 6 percent 
of the world's population now to far less than 3 percent by the year 
2050, something that may happen in only 25 years. The United 
States would remain the least densely populated Nation in the 
world, with the probable exceptions of Canada and Australia, and 
our per capita wealth relative to the rest of the world would be 
much greater than it is right now. 

There is also concern about increasing the percentage of foreign 
born in our Nation's population. Right now there are eight West- 
ern countries with a higher percentage of foreign born than the 
United States and we are better at absorbing immigrants than any 
of those nations. Yet, the concern is understandable. Immigration 
means change, and change brings about the possibilities of conflict. 

Let us take the worst case from the point of view of those who 
are concerned about the rise in the percentage of foreign born. 
Suppose Congress does not accept the Commission's recommenda- 
tions, which we believe would lead to a net annual migration of no 
more than 500,000 a year, a number that is certainly less than 
those net arrivals in the past few years. 

Suppose the net migration were higher, let us say 750,000 a year. 
That would lead to a population of 300 million by the year 2080, 
100 years from now, the equivalent of five generations. And of that 
population, one-third would consist of persons who had arrived in 
the United States after 1979, or of their descendents. 

Why should we be so worrisome, in light of U.S. history? The fact 
is that about 45 percent of the people now in this country either 
arrived here from afar or are descendents of people who came here 
within the last four or five generations. In fact, at least one-half of 
the congressional members of our Commission are descendents of 
persons who came to the United States within the last four genera- 
tions, not even counting that distinguished alumnus of Notre 
Dame, Ron Mazzoli. 

No one questions their Americanism in the slightest, even 
though many people vigorously opposed the arrival of their ances- 
tors, their grandparents, and great-grandparents, predicting dire 
consequences for the United States because of their admission. 

In years past it was argued that German immigrants, for exam- 
ple, because of their strong love for the German language and 
culture, would destroy the ties that bind us together as a nation, 
even our English language. Then it was the Catholics that people 
were worried about, particularly the Irish, of whom one was my 
mother, with their devotion to papal authority, who, it was main- 
tained, would prove incapable of contributing to a free society. One 
of them wound up as President of the United States. 

Next Jews, Italians, Poles, Greeks, and others were scorned as 
unfit to be good Americans. In fact, the last commission which 
preceded ours, that under the appointment of President Theodore 
Roosevelt, was based on the proposition that there were inferior 
and superior people in the world and that we ought to keep all the 
inferior people out, and that, as you know, was done in early law in 
this country. 



32 

So strong was the feeling against Asians that they virtually were 
excluded as legal immigrants until very recently in our history. A 
few of them have recently won Nobel Prizes for America. 

Only the American Indians can claim to be charter members 
here, but all of our ancestral groups in their own way can claim to 
have refreshed, renewed, defended and created the United States of 
America, and many of them and their children have given their 
lives in America's wars. 

We are all fortunate that some of our ancestors were immi- 
grants, others refugees, some contract laborers, others indentured 
servants, and still others survived the slave trade and made it to 
this land. Most of them suffered the migration passage and the 
problems of adjustment here, even those who chose to come, but 
few of us regret that they stuck it out. If they had not, none of us 
in this room would be here today. 

While this Nation should get its house in order by regaining 
control over immigration policy, and while it is clear that we can 
no longer follow George Washington's advice to open all our doors 
to all of the oppressed of the world, this would be a horrible time to 
impose additional quantitative restrictions on immigration. It 
would be a classic example of biting off one's nose to spite one's 
face. It would be a betrayal of what is the best in us, what the 
country stands for above all else — opportunity, freedom, and re- 
spect for diversity, based on the dignity and the worth of human 
beings. 

In 1939, the Congress followed the public opinion polls and re- 
fused to accept refugees beyond the number allocated under our 
restrictive national origins quota system. Not only did that doom 
those persons rejected to a fate determined by Mr. Adolf Hitler, but 
the United States lost the talent, the ability, and the gratitude of 
those people and their descendents. 

We can and we should assert our own values, and traditions, and 
our national self-interest by modestly increasing levels of immigra- 
tion and my instituting a legalization program as well and by 
enforcing the law firmly and fairly. What is required is a campaign 
of leadership to articulate those values, those traditions, and those 
interests in relationship to immigration so that the American 
people will support the recommendations of the Commission. 

Thank you very much. It has been a privilege to be with you all 
and to serve on this Commission. 

Senator Simpson. Thank you so much. Father Ted. We have a 
rollcall vote, so we must leave very quickly. Senator Thurmond has 
a statement to be entered in the record. I acknowledge the chair- 
man of the committee. 

Senator Thurmond. Mr. Chairman, since there is a rollcall vote 
and we will have to leave, I ask unanimous consent that my 
statement be placed in the record following that of the chairman. 

Senator Simpson. Without objection. The hearing will proceed 
with Chairman Mazzoli in charge. Thank you so much. 

Representative Mazzoli. Thank you very much. 

Father, thank you very much for your statement. Because we 
have a limited amount of time, we would limit our initial round of 
questions to 5 minutes. 



33 

First, Father, I was interested in your recounting of these four 
horsemen: parochialism and then xenophobic demogoguery. Was he 
the fullback or was he the halfback? [Laughter.] 

I am sure that he's one that Coach Faust could use. With a name 
like that he would be a tough one. 

Father, let me ask just a couple of questions. One deals with one 
of the big issues which the Commission report has raised, and that 
is employer sanctions. The fact that the Commission did not decide 
the question of what kind of counterfeit proof or secure system of 
identification should be used leaves some Members of Congress, at 
least those who have, talked to me, with a somewhat incomplete 
feeling. 

You have taken what I consider to be an interesting stand, and I 
wonder if you might elaborate. Father, a bit on the system that you 
might envision, the questions which have been raised about it, and 
a kind of a timetable, if you have one, that would be useful to this 
committee. 

Reverend Hesburgh. I would think that a very simple approach 
to this, which I must say many people would disagree with, would 
be to take a card that everybody is carrying right now, the social 
security card, and upgrade it and make it counterfeit proof, which 
would not be too difficult. One could even ask that people pay for a 
counterfeit proof card because they use it so much. They don't have 
to use it except on certain occasions, but very few people get a job 
today without giving their social security number and showing that 
it is their true number by presenting the card. 

I believe that of all the different systems I have heard, and 
believe me, we have heard hundreds of different systems, this 
would be a fairly simple thing to do. One could say, for example, 
that in addition to nine other very important usages of the social 
security card today, and you can find these on page 358 of our 
report in the special substatement of Senator Kennedy, that 70 
percent of the States use the social security number for driver's 
licensing purposes. Several States use it as one of the identifiers or 
authenticators in a cooperative data-sharing network worked out 
with the FBI. The National Drivers Registry of the U.S. Depart- 
ment of Transportation uses the social security number. Florida 
and Utah use the number for statewide educational recordkeeping 
of high school students. It is also used in many instances for vendor 
identification for fishing and hunting licenses. 

Many students, including those at our universities, are asked to 
give their social security when they apply to college board exami- 
nation, so that they can't be taken by someone else, or even when 
they apply to the university, for identification. Many other colleges 
use this for their normal recordkeeping. 

Credit bureaus use this for their data banks as identifier or 
authenticator. And many employers, including the U.S. Senate, use 
the social security number for employer recordkeeping and identifi- 
cation. 

In addition, Senator Kennedy asked the GAO to ask what else it 
is used for, and he was told that it was used to attend a meeting or 
a social function at the White House. When you give your number 
there they are not about to give you food stamps. They are just 
talking about whether you are going to get in or not. To join the 



34 

chamber of commerce or the Jaycees, to take out an insurance 
policy, to file an insurance claim, to obtain benefits from an estate 
or trust, to obtain a home mortgage or loan, to check into a 
hospital, to purchase or obtain title to an automobile, to register to 
vote, to install a telephone, to argue a case before the Supreme 
Court, to contribute to charitable organizations through payroll 
deduction, to register a motor vehicle, to obtain a library card or, 
last but not least, to give blood. 

Now if this card is used this much by millions of people in and 
out every day, and because it could be counterfeited by any high 
school student in the land that knows anything about printing, it 
would seem to me that it might be worthwhile to have it more 
authentic, so that people aren't using someone else's card or some- 
one else's number, and it would avoid a lot of difficulties through- 
out the land. 

I would personally like to see that done with it written into the 
law that it cannot be used for, how shall I put it, purposes of police 
identification. 

Representative Mazzoli. As a national ID, because that is the 
argument. 

Reverend Hesburgh. That is what turns people off, and I think 
that could be written into the law and made to stick. It is used that 
way right now, I might add. 

Representative Mazzoli. Father, would you envision a situation 
in which when I went to a prospective employer, that individual or 
some delegate — for instance the personnel manager — would fill out 
all of the forms about my qualities and talents and so forth, and then 
say, "Let me see your ID card or let me see your social security 
card."? 

Reverend Hesburgh. I would think it would be the simplest kind 
of identification, and we would all have to use it. I would have to 
use it and you would have to use it. 

Representative Mazzoli. Would you suggest a picture on the 
card? 

Reverend Hesburgh. There are all sorts of things. You can put a 
special magnetic tape imprint that goes with that number. You can 
put some kind of a picture or other thing. I have at least three ID 
cards in my pocket right now with my picture on them, one being 
for the State Department when I was serving as ambassador, an- 
other one being for my driver's license and a third one being to get 
into the Chase Manhattan Bank where I used to serve on the 
board. 

Now I think that to have something simple that is useful in 
many other contexts would be good. 

I think the problem is when someone comes in who is foreign- 
looking or has an accent in English and people are afraid they 
might be illegal and people turn them down, they couldn't do this 
if you have a card. If you have a card, you are in. 

I have had the experience of many Mexican Americans who have 
been badly hassled at the border and they're American citizens. 
They are born here. But because they look foreign or some such 
thing, whatever that is, they get hassled when they go home to see 
their relatives and try to come back to the United States. And I 
think to have something, you can just say, "Off my back." 



35 

Representative Mazzoli. Well, my time has expired, but it seems 
clear to me that if you have sanctions against an employer, there 
has to be some ability on the part of the employer to determine 
who is, in fact, legal. 

Reverend Hesburgh. It would be an imposition to lay this on an 
employer and not give him an easy means of doing it. It ought to 
be done as simply as you get gas at the gas station. 

Representative Mazzoli. Thank you. My time has expired. The 
gentleman from New York, Mr. Fish, is recognized for 5 minutes. 

Representative Fish. Thank you very much, Mr. Chairman, and 
thank you. Father Ted, for that very fine statement. It illuminates 
so many of the issues that we faced. 

In your testimony when you stated that Congress adopts the 
recommendations, and we are talking numbers now, of a net immi- 
gration of 500,000, that the population of the country will level off 
at 274 million by the year 2050, I assume there that you are 
contemplating 50,000 refugees per year? 

Reverend Hesburgh. Yes; we actually doubled it to make it more 
conservative. We put in 100,000. 

Representative Fish. 100,000 refugees per year. 

Reverend Hesburgh. If you take the average of the last 15 years, 
the average is 50,000, but because of the last 2 years being fairly 
large because of the Cuban situation, the boat people, et cetera, we 
doubled the number that are in there. 

Representative Fish. What fertility rate was used to measure 
that? 

Reverend Hesburgh. 1.8, which is the current one in the United 
States, which is not reproducing. We are at zero population growth 
right now for the purpose of that figure. 

Representative Fish. Did any Commission studies reveal that 
perhaps with a change in the population of the country, that that 
fertility rate may rise and change 

Reverend Hesburgh. Actually, it tends to level off with the 
national rate and I think it is probably a function of hope. People 
somehow have better opportunity and they get more education. 
They also have better employment, perhaps, and more prosperity, 
and that number tends to level off. It may take a generation or so 
to do so, but all our studies would indicate that before long it is the 
same as the national average. 

Representative Fish. In your discussion of numbers, I didn't hear 
you talk about the additional 100,000 per year over a period of 5 
years to clean up the backlog, which I think has relevance to your 
discussion of Mexico as a special case because it is my understand- 
ing that if the Congress did go for the extra 100,000 a year for 5 
years over the 350,000, that Mexico would be one of the principal 
beneficiaries of that legislation. 

Reverend Hesburgh. There is no question about that. 

Representative Fish. The considerable part of your testimony 
was dealing with a temporary worker program, and being in oppo- 
sition to it. I wonder, if we are not going to have a temporary 
worker program, what the Commission's view was of the continued 
pressures on our border, particularly from Mexico and the Caribbe- 
an Basin, what we would put in its place to accommodate the 
pressures to come to this country? 



36 

Reverend Hesburgh. I think I could oversimplify by saying we 
tried to close the back door as much as possible and to open the 
front door a little more. I realize we will never open it up to the 
extent we have an open border. I don't think we can. But I think 
with the enlarging somewhat of 270,000 to 350,000 as a total figure, 
stressing family reunification, and we have about 15 million His- 
panics in the country now and many of them would benefit by 
family reunification; by stressing legalization, and that number 
would also benefit by family reunification, I think we would have a 
much better situation than we have right now, and certainly more 
legal. 

I would have to say, though, that we probably would never get to 
the figure that we wanted because Mexico has a very high birth 
rate and they have a demand for 600,000 new jobs a year, and it is 
unlikely that that demand will be filled. 

I would say that looking up the line, we have set up a system 
that could work with fewer or more people. And as you know in 
our discussions, I think there ought to be a flexibility built into 
this system whereby every other year, in view of the socioeconomic 
situation in the United States as regards unemployment, as re- 
gards the gross national product, as regards labor demands, we 
ought to be able to make differences in the numbers entering, and 
that it shouldn't be carved in stone for all time. 

We also allowed in our report that the H-2 program, which is a 
temporary worker program, be continued or modestly enlarged. 

But I think I would have to honestly say, and you were privy to 
all these conversations, that after much looking at the program, 
and having some fine testimony, including some from Senator 
Hayakawa, and hearing a good deal about this in our public hear- 
ing in Phoenix, Ariz., that we finally came down to the thought 
that we couldn't really bring it under control with a large tempo- 
rary worker program, I guess the main reason being that from the 
German and the French experience with the guest workers, that 
they tend to stay. Then you have a problem of what are you going 
to do about repatriating. 

In two times in our history, we have driven 1 million Mexican 
workers back across the border, after the bracero program and I 
believe in another period in our history, and I think both of those 
occasions were rife with all kinds of abuse of human rights and 
even simple humanity. And I would think a large guest worker 
program might get us in that box again because times do change. 
We have good times and bad times and it is not fair to ask people 
for help in good times and then suddenly push them across the 
border in bad times. 

Representative Fish. Well, the flexibility you mentioned would 
work both ways? A review every 2 years in which the numbers 
could go up as well as down, depending on demographic factors, 
economic factors? 

Reverend Hesburgh. I think somehow in your discussions. Chair- 
man Mazzoli, I hope that you look at the possibility of flexibility. I 
thought of a high-level group or committee or commission or what- 
ever you want to call them here in this town who are in contact 
with the geopolitical realities from the State Department, the labor 
realities from the Labor Department, the legal realities from the 



37 

Attorney General, and top flight representatives from those areas, 
perhaps as well as Health and Human Services, that that group 
could look at some trigger factors every year, being mostly, I think, 
unemployment, state of prosperity, labor demand in certain sectors 
of the economy, especially in the Southwest, which is growing so 
fast, and to say we will be sensitive to these and we will recom- 
mend movements up or down, depending on the socioeconomic 
conditions in the United States. 

That, I think, would make a lot more sense than saying this 
number for all time. 

Representative Mazzoli. The gentleman's time has expired. The 
gentleman from Texas, Mr. Hall, is recognized for 5 minutes. 

Representative Hall. You stated at page 4 of your testimony 
that "As a Nation we cannot survive without international cooper- 
ation," which of course I agree with. When you discuss the guest 
worker program on pages 13 and 14 of your testimony, you stated 
that: 

Many have suggested that a guest worker program would be helpful to Mexico. 
Apart from the fact that no Mexican official recommended that position to us, we 
did not think it wise to propose a program with potentially harmful consequences to 
the United States as a whole. 

Were any Mexican officials asked for any input during that time 
this Commission was in operation? 

Reverend Hesburgh. They have some independent research of 
their own going on and we consulted with them regarding what 
they were doing, what we were doing. 

I would like to ask our Director Larry Fuchs, since he was the 
one directly involved, to answer that. 

Mr. Fuchs. We met on several occasions with representatives of 
the Ministry of Labor and of the Department of Foreign Affairs, on 
one occasion with the head of the North American Section of the 
Department of Foreign Affairs, and on at least three or four occa- 
sions with a representative from the Ministry of Labor, who had a 
special informal responsibility for consulting with the select com- 
mission. And our exchanges were on an informal basis, and we 
have been, in addition to that, in constant contact with Mr. Barona 
Lapata, who is in this room today, in an informal way, since he has 
followed our hearings, and we have tried to be sensitive to and 
aware of the positions of the Mexican Government with respect to 
immigration. 

Representative Hall. Did the Mexican officials you were in dis- 
cussion with ever say that they would be opposed to a guest worker 
program? 

Mr. Fuchs. Yes, Mr. Hall. 

Representative Hall. What reason did they give? 

Mr. Fuchs. I think, Mr. Hall, that the reasons were not ad- 
vanced. It was simply categorical that they would not be interested, 
and it may be that the reason that they say that is that they would 
prefer to have the United States propose it and to see what it is, 
rather than to have them, through this informal channel at this 
level, introduce the idea as a bilateral idea. 

So I do not take the statement: "No, we are not interested in a 
guest worker program" to be a final statement. I do not take that 
to be the considered, full statement of foreign policy or immigra- 



38 

tion policy on the part of the Mexican Government. It is the 
statement that was made to the select commission through me. 

Representative Hall. Did your Commission develop any testimo- 
ny that indicated that the undocumented alien was taking away 
jobs of American citizens? 

Reverend Hesburgh. We had a very difficult time with that, Mr. 
Hall, because we actually brought it up at almost every one of our 
public hearings, and we always heard two sides to the question. I 
have said often it brought me back to the early days of the Civil 
Rights Commission where we would go into a community and one 
group would say there is terrible discrimination here and the other 
group would say there is no discrimination here. 

What we heard was first, minority groups saying yes, they are 
taking our jobs. Then we would ask the employers and they would 
say we advertise for jobs and five showed up and they left at noon 
and we couldn't get our crop in. 

We had a man in the San Francisco hearing, I recall, who said: 
"I am never again going to plant a crop that can't be harvested 
mechanically because if I can't get undocumented workers, I can't 
get the crop in because I can't interest other people into coming 
out and doing stoop labor in 115 degrees heat," which is understan- 
dable, I guess. 

But in any event, I would have to say that my own perception, 
having been at many of those hearings, and having read the special 
staff studies that were prepared, is that we could not simply be- 
lieve a yes or no answer to that question. There were people who 
said they were taking away jobs and there were people who said 
they were doing jobs that nobody else wanted. You can get good 
opinions on both sides and I'm sure you can get statistics, and 
there is a good deal of research on it. 

Larry, do you want to add anything to that? 

Mr. FucHS. I don't think there is any question. Congressman 
Hall, that in some localities, in some sectors of the economy, there 
is displacement of U.S. workers. And that is on the basis of a great 
deal of research. 

I also believe personally that the extent of the displacement is 
often exaggerted by persons who, for whatever reason, want to 
make that point. It depends very much as to whether you are 
talking about the secondary labor market or situations in light 
manufacturing in, let's say, Chicago, where there would be one 
clear example where the INS cleared out a group of aliens after a 
raid and those jobs were filled within a few days by persons in the 
city of Chicago. 

I think the important thing in this subject to consider is that 
you've got people from all over the world. Only about 50 percent of 
the illegal aliens in this country are Mexican nationals, and that 
you have a great many undocumented, illegal aliens not in the 
secondary labor market but they have moved on into other jobs 
that pay above the minimum wage, and they are still in that 
underclass where they are easily preyed upon and exploited by 
employers and, therefore, depress wages and standards, and not 
just displace workers. 

Representative Hall. I know my time is very limited, but do you 
think that it would be advantageous at this stage, before any 



39 

action is taken by the Congress, for officials of the Congress or your 
committee to go back and have discussions with the Mexican offi- 
cials with reference to a guest worker program? 

Reverend Hesburgh. I don't think anything can be lost by having 
such discussions. In fact I would hope that there would be such 
discussions. But looking at all of the ramifications of what that 
means, our problem was that we thought one could easily install 
one, and there would obviously be takers if one installed such a 
program. 

The problem is how do you control the limitations on the pro- 
gram? It is almost impossible with the kind of ports we have now 
to do that, and I think we would simply be reproducing what we 
have now, which is illegal immigration. One would come on the 
program, get a job, get lost somewhere and not go home, and then 
we would be right back where we started. That was our perception 
after looking at it. 

I must say, I started out sympathetic to the idea of a guest 
worker program. 

Representative Hall. Thank you. 

Senator Simpson. Thank you. Congressman Hall. 

I really regret the hurried way we scurried out of here. I wanted 
to wait until the end of your testimony, and it was excellent and 
will be entered into the record. 

Let me ask your opinion on the areas of immigration and refugee 
policy which in your mind the Commission did not address in 
sufficient detail, and which might be useful for the Congress to 
examine. 

Reverend Hesburgh. Let me just tick them off, Senator. Obvious- 
ly we didn't completely bite the bullet on what kind of easy, 
noncounterfeitable identification. I am willing to do that personally 
and I did it I think in your absence. I said an upgraded social 
security card because we all have one anjrway and need it on 
many, many occasions, would be the simplest kind of identification, 
although I would like to see, if it is upgraded, that there are 
certain restrictions put on its use for police identification. 

Second, I don't think we have really solved the problem of what 
we do with mass immigration that is unforeseen and just happens, 
such as the Cuban incident of last year. I don't think that we really 
have yet solved that problem, and as you recall we got around it by 
doing what the Congress did when they established the Commis- 
sion. They didn't quite know the answer so they set up a commis- 
sion and we in a sense suggested a quasi subcommission that would 
really look at this program, pull in people involved through the 
Immigration Service, through the local community, through the 
Labor Department and others, and try to come up with some kind 
of scenario, what would happen if. And my guess is that that is the 
most difficult problem of all. 

You have heard me say many times that I believe that the whole 
problem of migration of people will be one of the great spectres of 
the future, that I can easily foresee not just a few hundred thou- 
sand people arriving at our shores but hundreds of millions of 
people from the poor parts of the world such as India, marching on 
Europe, if they have three or four bad harvests and they are 
actually starving to death by the millions. I could see that same 



40 

kind of incident happening here by land and by sea if we came to 
that kind of impasse. 

The only answer I see in the long, long run for that question is to 
have economic development in those parts of the world which are 
such disaster areas that without economic development people are 
just going to leave and try to go to another country. 

Senator Simpson. Let's go now to this issue of legalization or 
amnesty. Some persons see a legalization program as a reward for 
those who violated our laws and circumvented the system. Could 
you, for the record, assist in explaining the rationale for including 
the one-time legalization program as an integral part of the pack- 
age? I guess that comes from my own recollection that when this 
was first presented many Commissioners had reservations. Then 
after only one afternoon of deliberation, it was unanimously ac- 
cepted. 

Reverend Hesburgh. That's right. 

Senator Simpson. Would you share that process, please? 

Reverend Hesburgh. I think, first of all, look at the alternatives. 
The people are here. We are not adding to the population of the 
United States. They are here, and I suspect many of them were 
counted in the last census. 

Many of them are not just here. They are working. They are 
establishing families. Their children that are born are U.S. citizens. 
And they live in the shadow world. I have had many of them call 
me up on the phone or v/rite me letters and just say I've been here 
10, 15 years, what do I do? 

The alternative is to try to round them all up. First, I don't know 
how you would ever find them. Second, rounding them all up 
would be enormously expensive, if not impossible. And on top of 
that, it seems to me not a very good thing to do at this stage. 

So my guess is, I think in terms of a tripod, as you know, 
Senator. I think of legalization following upon employer sanction 
and easy identification. I think that will clean up the nub of the 
illegality which is festering in this area today. 

Senator Simpson. I think it is important to share with the public 
the means which the Select Commission used to assess American 
citizens' public opinion during the course of its work, and how that 
was deeply considered as we arrived at our decisions. 

Could you briefly explain that? 

Reverend Hesburgh. Yes; I think the first indication of that, of 
course, is the title of our report, which is "U.S. Immigration Policy 
and the National Interest." I think you, sir, were always insistent 
that this was a sovereign country and that we had to establish our 
own laws, that every other country on Earth did, and we did a 
rather poor part of it. 

I think through the public hearings especially, where we not 
only scheduled people throughout the day who could give us the 
best information, but at night had an open microphone for 3 or 4 
hours where anyone could come and speak to us about their con- 
cern, plus an enormous correspondence, some of which came to the 
Commission and some of which I'm sure you and I and others on 
the Commission received personally. 

I would say we have been largely responsive to the public inter- 
est and to the public concerns. 



41 

Senator Simpson. Just one final question, and then I will submit 
some further questions in writing and would appreciate your re- 
sponse. 

You spoke briefly on the issue of refugees. One of the problems is 
that in the new law we established a normal flow of 50,000 and 
then we went to 218,000 the very first year. This could present 
serious problems. What are the numbers? What is your thinking 
with regard to the numbers the United States can accept for reset- 
tlement in a refugee policy for the future? 

Reverend Hesburgh. Let me say just for purpose of background 
that we have figures going back to 1960 here, and in those years 
the numbers were about 12,000 and 13,000 the next year. Then we 
had a period during 1967 to 1970, a 4-year period when the num- 
bers were in the 50,000 range. Then we dropped back to 20,000 
again in 1973 and 1974 and up to 50,000 again. In 1976, because of 
special circumstances, we had 103,000 and the next year we were 
down to 14,000 again. 

The average for all those years came out to about 50,000. My 
guess is one would have to double it, given all the problems in the 
world today. In our figures that we gave you for the long-range 
projections, we raised that figure to 100,000 in the calculation. 

Senator Simpson. Thank you. My time has expired and let me 
recognize Congressman Dan Lungren of California, whom I came to 
know early in my time here. He is a a new Member of the House 
subcommittee who has already been a very important participant 
in these proceedings and this issue. 

Representative Lungren. Thank you, Mr. Chairman, and it is 
good to see you again, Father. I applaud the commitment to this 
cause that you have exhibited, and in particular your call to action. 
As a member who represents a district that is heavily impacted, I 
found out even more when I went home how heavily impacted. The 
lastest Census Bureau statistics of my hometown of Long Beach 
showed that 4.5 percent of the total population of my hometown is 
now Southeast Asian refugees. We have 2,000 students in our local 
school district from Southeast Asia. In addition we are very heavily 
impacted by both legal and illegal migration from other parts of 
the world. 

So I am extremely pleased that this Commission has at least 
brought us to a position of attempting to focus attention on this 
matter. I must say it is the first time I have been accused of 
seduction with regard to the subject of guest workers, and I think 
it's probably the first time anyone has ever suggested that you 
were a seductee. 

Actually I am kind of flattered by it because the Commission 
gave it short shrift in the report, and I noticed about a third of 
your statement involved the guest worker concept so I would like 
to talk about it, if you don't mind. 

I operate from the premise that we have had tremendous labor 
migration from Mexico to the United States since at least 1880. At 
least all the historical data seems to suggest that. And now the 
Commission seems to suggest that if we have employer sanctions 
and legalization of those that are here, at least since that date you 
gave, that this will take away the magnet that draws these people 
to our borders. 



83-514 0-81-4 



42 

And I just wonder what the rationalization for that is in view of 
a 2,000-mile common border, and I agree we ought to upgrade and 
increase border patrol and so forth, but I think it is unrealistic to 
believe we can ever totally close that off. And given the fact of the 
population density of Mexico, the increase in young people there, 
where half the people are 15 years of age or less, are we truly 
going to be able to effectively cut this off or are we in fact going to 
have a legalization program, a slightly expanded H-2 program, and 
then continued illegal immigration to this country, predominately 
from Mexico? 

Reverend Hesburgh. I think it is an open question, Congress- 
man, but our best calculation was that if people came and made 25 
attempts to get a job and were told where is your card and they 
didn't have one, they would likely go home. No one is going to stay 
here just because the climate is nice. And we also assume that if 
we cut off 75 percent of illegal migration, that would be perhaps an 
optimum figure. There will always be an area of illegal migration 
that we probably won't touch because there will be small employ- 
ers who will get housemaids and not say anything about it, or stoop 
labor and small concerns or gardening and that kind of thing. I 
don't believe one can completely control every port in America. 

But I would like to make one point that I think is important 
here. There is no way on Earth you could collect incom.e taxes in 
America if the employer didn't cooperate with withholding. It 
doesn't cost the Government anything. And it is fairly effective 
because once something gets in place and is accepted, like having a 
driver's license for example, it becomes the thing one does, even 
though like myself, there are many people who have never been 
asked in their whole life for a driver's license. 

Representative Lungren. Well, I guess my question is — is it an 
assumption underlying the recommendations of the Commission 
that those who are here illegally and would be legalized under your 
system would therefore fill these jobs that are now filled by those 
who are here illegally? 

Reverend Hesburgh. No. I don't think one can make that as- 
sumption. 

Representative Lungren. Well, who would fill those jobs? 

Reverend Hesburgh. I think some of them would go down the 
drain, frankly. For example, there are sweatshops in the garment 
industry that are working people overtime without pay. They are 
paying them substandard wages. They are working them under bad 
conditions. 

Representative Lungren. They would go down the tubes with 
the guest worker program, too. 

Reverend Hesburgh. And I don't think I would mourn that 
because it is a terrible way to treat human beings. We got rid of 
that in child labor; we got rid of it in many aspects of the garment 
trade in New York, but it still does exist in many places. I don't 
have much sympathy for that kind of treatment of human beings. 

Representative Lungren. One of the difficulties I have is that for 
such a long period of time we have ignored this problem and said 
things that just aren't true. Growing up in Southern California, it 
is a reality. If you go to a restaurant, or to many different indus- 
tries, you notice that many of the people are here illegally. We 



43 

know about it. People wink at it. We know it is a fact and it has 
been a fact of life for some period of time. 

Yet you have some studies, such as the one done by Dr. Wayne 
Cornelius down in San Diego which suggests that 85 percent of 
these individuals from Mexico come up here for no longer than 5V2 
months at any one period of time, and have a total life expectancy 
in this country of I8V2 months. They return back to their country, 
and that is an established pattern. 

That being the case, isn't there some feeling for a temporary 
worker program or a not just mildly increased H-2 program, to 
deal with the reality of that migration that is of a temporary 
nature? 

Reverend Hesburgh. I think one can argue it without being 
accused of being silly. I mean it is obviously a program that many 
people think of seriously. You do 

Representative Lungren. No, but I'm just trying to see how we 
are going to deal with that. 

Reverend Hesburgh. But I simply say that that is an invitation 
to continue the illegality we have been trying to get rid of. Now it 
may be that if our system were put in and it were found to be 
inadequate, there would have to be another adjustment to it. 
Maybe the adjustment would be temporary worker. I don't know. 

But I think our concern was that we have such a subclass that is 
being treated often in a subhuman fashion, first in the way they 
get here, what happens to them when they get here, and the 
problems they have going back and forth if they do return home, 
as many do, that we thought we should get rid of that illegality 
and get a little more humanity into the system. 

Now it may be that if you take our whole system, you are still 
going to face a problem in this regard. For example, we put in the 
bracero program during the war, 1942 or 1943; 10 million people 
came and went in that program between then and 1965, I believe, 
when it was cut off. But the fact is that we had these enormous 
sweeps of rounding up 1 million people and sending them back to 
Mexico, and I don't think that is a very good picture of what one 
wants America to be like. 

What we are trying to find, Dan, and I think this is an honest 
statement, we are trying to find one, a way of getting rid of the 
illegality that has come up in the past, which makes the law more 
restricted in the breach than in the keeping. Second, we are trying 
to get some system that is flexible like an accordian. If you put 
500,000 in it will work; if you put 750,000 it will work. You can cut 
it back to a quarter of a million and it will work because it is a 
legal system that can be monitored and it is somewhat institution- 
alized in the employer arrangements in this country. 

If you do all that and you still have a big problem, then I think 
it probably needs another adjustment, and I would be the first one 
to ask for it if that time came. 

But let me remind you that there is another historical fact that 
most Americans don't think about. The whole State of Texas, Ari- 
zona, Utah, Colorado, New Mexico, and California used to be part 
of Mexico. It was about half of Mexico. We just grabbed it at one 
point. We paid a little bit, but it wasn't a big deal. And many 
people just look on this as an extension of their own country, many 



44 

people in Mexico. It's one of those cases that one can't just blink at. 
It is a historic fact. 

Senator Simpson. How is that for a later issue that will consume 
some of our activities? I hate to cut you off, but we will try to 
follow time limits, since we are running behind schedule. 

Let me recognize Senator Grassley, Chuck Grassley of Iowa, a 
new member of the subcommittee of the Senate. He is a helpful, 
contributing member and is very actively interested. Senator 
Grassley. 

Senator Grassley. Father Hesburgh, if you have had a chance to 
analyze, I would like to know what effect the proposed budget, 
which obviously means less spending for the Immigration and Nat- 
uralization Service, will have on the Select Commission's recom- 
mendations in the following areas of increased border partrol activ- 
ities, increased deportation of illegal immigrants, and increased 
investigation of visa overstays, and adoption of a fully automated 
system of nonimmigrant document control? 

Reverend Hesburgh. The only honest answer I can give to that, 
Senator, is it would be disastrous. I mean everybody is criticizing 
the Immigration and Naturalization Service now. It has been called 
demoralized. It has been called understaffed. It has been without a 
full-time Director for over 2 years in both administrations, the 
present and past. 

And I guess the only way I can describe the Immigration and 
Naturalization Service, and I am in favor of them and what they 
have been trying to do, the only way I can describe them is that 
they are like a fellow where you cut him off at the knees and then 
call him shorty. Really, we have asked them to administer an 
ambiguous, impossible law. We have had them do two things which 
are almost mutually contradictory, to enforce the law on one side 
and to counsel people on the other and treat them nicely. We have 
simply undermanned them. We give them a 2,000-mile border and 
one helicopter and say watch what's happening. 

It is just, in my judgment, an impossible situation, and rather 
than criticize them, I think we ought to ask ourselves what have 
we asked them to do and what are we giving them to do it with, 
first in the law, and second, in the means of carrying out the law? 

Now to say we are going to take that rather impossible situation 
and cut it further is, in the only word I can think of, disastrous. 

Senator Grassley. Thank you very much. Second, and my last 
question, and Mr. Chairman, I am going to have to leave but I 
want permission to ask some written questions of the other people 
who are testifying. 

Senator Simpson. Without objection, so ordered. You bet. 

Senator Grassley. Once again, would you respond to the conten- 
tion that the establishment of an employee eligibility system will 
promote employer discrimination, and those who appear to be for- 
eign born will be harmed by implementation of such a system? 

Reverend Hesburgh. I think it would do just the opposite. Sena- 
tor Grassley, simply because many people are discriminated 
against right now in our country for employment simply because 
they may look foreign, whatever that might mean — it's hard to say 
what an American should look like because we come from so many 



45 

different sources. I have five different nationalities in me and I 
suspect a few others besides that I don't know about. 

The second thing is that if people don't speak English perfectly, 
they sometimes get discriminated against. And I would just like to 
say that having a simple means of identification means that when 
you ask for a job and you flash it, the fellow can't say that I didn't 
hire him or her because I thought they were an illegal alien. There 
are laws against turning down people because you don't like the 
way they look. 

Senator Grassley. OK, that is all the questions I have. 

Senator Simpson. Thank you very much. Senator Grassley. Now 
let me recognize Congresswoman Pat Schroeder, new member of 
the House subcommittee and a neighbor from Colorado. Pat? 

Representative Schroeder. Thank you very much. Father, and I 
really want to thank you for the time you have put in. I think one 
of the great things about this country is civilians are so willing to 
volunteer to do all this work, in return for so very little. 

As we talk about this whole legalization process, I understand 
how you got there. One of the fears we all have is that every time 
ys^e hear it's a one-time only program, it won't be, that the system 
is so overwhelmed that if you just get the numbers up high enough 
we will have to do it one more time and one more time. 

Another aspect of the problem that I wondered if the Commis- 
sion had looked at at all, is what is the profile of the average 
person who would qualify under this legalization process? 

Reverend Hesburgh. I think we can give you a fairly good pic- 
ture of that. First, the myth is that they are all Mexican Ameri- 
cans. That is not true. We compute that maybe half of them are 
Mexican Americans. The myth is that there are as many as 12 
million. The best we are able to find out is that there is somewhere 
between 3.5 and 6 million at any given time, with a very high 
turnover but at least 30 percent coming and going. 

Third, we think they tend to be younger people who are unem- 
ployed, who come here for employment purposes. They also tend to 
be married men who come here to get enough to live for the next 9 
months. They come and work for 3 months and then go back. 

We uncovered all sorts of villages in central Mexico where for 
years, as far as people can remember, the eligible men in the 
family came for 3 months or 4 months and returned. And I'm sure 
there are other points that would be part of a profile. Do you want 
to add to that, Larry? 

Mr. FuCHS. There are two questions, I think. One had to do with 
what was central to persuading people to agree to legalization. This 
is really the same thing that Senator Simpson asked about. That is, 
it is so important to get the information from a legalization pro- 
gram in order to help curtail future flows of undocumented aliens. 

Representative Schroeder. Switzerland recently had a vote on 
whether or not they were going to let in the families of foreign 
workers. It was 80-2 against letting them in — a very heavy man- 
date. 

And one of the pieces of that profile is that a lot of the people 
that you would be legalizing have families they would want to 
bring in. What have you done to the normal process of family 
reunification? Are there going to be people waiting 10 and 15 and 



46 

20 years, and where will they move, and what will their priority 
numbers be? Does it wreck havoc on the law that is now on the 
books? 

Reverend Hesburgh. I think we have the numbers on that. Two 
things happen, really. They have had such a program in Canada 
and Australia, and I was also part of the Vietnam amnesty pro- 
gram of President Ford. And what always happens for some cur- 
ious reason, a rather small percentage of those eligible for amnesty 
actually show up to claim it, I think because they have concern 
about whether it is a trap of some kind, and that is why we 
suggested that if we do put in a legalization program, it operate 
through voluntary agencies, people that are obviously concerned 
about people, people who speak their language, people who want to 
help them, not hurt them, and have a long record of this. This 
would greatly aid the program. 

As to the actual numbers, I think Larry has them. We have 
studied those. 

Mr. FucHS. Well, we try to make conservative estimates on the 
outside, and we are estimating that it may be that as many as iy2 
million will show up if the program is successful. You have iy2 
million from Mexico. Outside, you would have 3 million from all 
over if the program were tremendously successful. 

One can estimate also the derivatives of that number, the 
number of spouses and the number of children of spouses. And if 
you look when you get the staff report, if you look at pages in the 
section dealing with the characteristics of illegal aliens, you will 
see an answer to your question in full, much more fully than we 
can develop it here. You will see the summary of all of the findings 
from all of the creditable studies that have been done on the 
characteristics of illegal aliens, summarized in a chart form. It is 
not just a narrative. It is really quite easy to see. It gets into 
everything: marital status, how long they have been here, whether 
or not they are turnarounds or are here to stay and so on. 

And from that, we derived estimates as to the number of family 
members who are overseas who would then be eligible under what 
is now second preference in our system. It would be a special 
preference. That is the minor children and spouses of resident 
aliens. And that is quite assimilable within the 100,000 number 
that has been assigned as additional to the 350,000 for the purpose 
of clearing backlogs, so that you get 450,000 in those first 5 years. 

If it is not assimilable, they have to wait on line behind those 
who have already petitioned through the legal system or are on the 
backlogs. So it may be that a wife in that case would have to wait 3 
years or 4 years on the outside. That is possible. Not everybody will 
get in immediately. But at least the husband will have the green 
card and can return home legally without worrying about the 
border crossing, which is something that may keep the families 
back there actually. You may find there is more going back and 
forth from these people, once they have a green card and feel safe 
with it. 

Meanwhile, we will have gotten the information we need to 
curtail future flows, which is so important to this process. 

Reverend Hesburgh. Congressman, can I just add one thing that 
might be useful to you and the other members? We find that when 



47 

immigrants come from nearby, like Canadians, especially French 
Canadians, and Mexicans, they much less tend to take on citizen- 
ship. They would rather be resident aliens and go back and forth a 
great deal, as compared to say Koreans or Taiwanese or Filipinos. 

Also, these people, to be legalized, have to qualify for the normal 
purposes of legalization. They would have to meet the exclusion. 
Second, they would have to be here for some number of years. They 
would have to have a nonpolice record. And on top of that they 
would have to be employed and capable of taking care of their 
minors. 

Representative Schroeder. Thank you. I have many more ques- 
tions but I will wait. 

Senator Simpson. Thank you so much. Now we would recognize 
Congressman Bill McCollum, who represents citizens of the State of 
Florida, a State most significantly affected in recent times. Con- 
gressman McCollum. 

Representative McCollum. Thank you, Mr. Chairman. 

Father Hesburgh, I know that much of what has been said in the 
Select Commission report about the numbers of undocumented 
aliens is an estimate, and I know you have been talking today 
about some figures, in answering Congresswoman Schroeder's ques- 
tions. 

I have in my hand a report of April 6, 1981 that I am sure you 
are familiar with from the Government Accounting Office, which 
indicates some things that I think are important to us, and I would 
like to ask your response and reaction to one or two points in it. 

It says, specifically on the subject of the number of undocument- 
ed aliens residing in the United States, their conclusion is un- 
known. The statement inside the cover, the first page of the report, 
says, "There is simply no statistically reliable measurement of the 
undocumented alien population. Through the years, estimates have 
ranged from .6 to 12 million." 

And on down in the body, talking about the lastest census fig- 
ures, the comments are made: 

The Census staff used existing studies to form an estimate of undocumented alien 
population for the Commission. The staff notes that the estimate is based not on 
empirical research, but speculation. 

And I also note that one of my colleagues checked with the 
Library of Congress earlier about the question of how many, they 
determine, according to their records, of the undocumented aliens 
are estimated to be Mexican. The estimate there, instead of the 50 
percent figure you used, was 85 percent from the Library of Con- 
gress. 

Isn't it true really. Father, that when we talk about undocument- 
ed aliens, we are really talking in terms of speculation? 

Reverend Hesburgh. In large measure, yes. We simply could not 
find one piece of research in which one could have full faith that 
this was the answer. However, among all of the research that has 
been done, and we looked at all of it, we looked at the interpreta- 
tions of all of it, we came out with a figure that I think is generally 
accepted, maybe not by the Library of Congress, but it was general- 
ly accepted that the 3.5 to 6 million people was as close an estimate 
as you could get, especially because of the revolving nature of this 
number. 



48 

Now on the 50-percent Mexican, I would like to ask Larry be- 
cause he worked in this field directly. 

Mr. FucHS. Let's get at this. That report, as you know, relies 
heavily on our reports. They are really just quoting us. 

A, it is perfectly true. There is no accurate count that you can 
rely on, of undocumented aliens. There is an accurate range now 
for the first time, and that accurate range is based upon the work 
of the three senior demographers of the Census Bureau, led by 
Jacob Segal, for the Select Commission, which is that in 1978, at 
any one time there were no fewer than 3.5 and no more than 6. 
They said no more than 5 in all probability. We put 6 on it as an 
outbound and went along with that. 

Now from that, taking the outbound of 6, and that is at any one 
time, that is disputed by the CINIET studies done in Mexico and 
disputed by some others, but this is based upon a review of eight 
studies, all of whom have imperfect methodologies. All of them are 
based on heroic assumptions, but they are all ingenious and credi- 
ble methodologies done by credible researchers. From none of them 
would you go beyond the upward bound of 6; nor would you go 
below the lower bound of 3.5. 

From the 6, we made our own calculations and estimates as to 
the numbers possibly eligible for legalization. That was 3. How 
many would show up of those eligible? That is to say assuming 
certain things that the Congress does in order to provide for eligi- 
bility. And there we made another estimate of an outward bound of 
1.5, and that is how you get to the 1.5. And from that we made 
another estimate as to the derivatives overseas, based on the stud- 
ies of characteristics which we have, which you will see in the staff 
report. 

So all of these must be thought of as estimates, but with ranges 
which are as reliable as we can make them. 

Representative McCollum. I admire the statistical range that 
you went into here, your ability to perform with these figures, but 
it sounds like we're winging it with the best guess available. 

Mr. FucHS. The best guess available. That is exactly right. 

Representative McCollum. I want to change the subject. I think 
the point is made, and I wanted to be sure I understood and you 
agreed with that point. I am very concerned in my State with the 
number of asylees or applicants for asylum or refugees, whatever 
term is used, and not only from Cuba but from Haiti. I recently 
visited my colleague Mr. Lungren's State and saw the problem of 
the Indochinese refugees and the tremendous absorption problems. 

I know the Select Commission report addressed that problem and 
it talked in certain ways about dealing with these matters, but one 
of the things that troubled me has been the fact that it really has 
not addressed and did not address, Father, the question of the 
Presidential prerogatives that seem to be so easily abused now in 
letting folks come into this country for one reason or another, for 
whatever reasons, whatever pressures. 

It has been suggested by some, and I am just asking your reac- 
tion to this, that perhaps in the Commission's recommendation 
regarding the total number of people to be allowed in here, immi- 
grants for visas or nonimmigrants in the asylum situation if you 
want to call that refugees in another category, that saying from 



49 

the standpoint of refugees they should be unlimited and they 
shouldn't be included in the total number, is wrong. Instead there 
should be an inclusion in the total number of refugees and those 
seeking asylum, in order to bring pressure on a President and on 
an administration to only let so many in because of the trouble of 
absorbing these people. What do you think of that? 

Reverend Hesburgh. Congressman McCollum, we didn't want it 
to be unlimited. We simply said that we don't want to count it in 
the figures we give because in a given year they will be skewed by 
what a President and a Congress does. What we said was we will 
go with the 1980 refugee law, which is a new law, which took an 
average of some 15 years and came up with the figure 50,000, left 
an escape hatch sa5dng that if there is an emergency such as there 
was in the Cuban thing, the President, consulting with the Con- 
gress, can go beyond that. 

Representative McCollum. But those seeking asylum aren't in- 
cluded in that and those seeking asylum are where we get the 
Cubans and the Haitians right now, and that bothers me a great 
deal. 

Reverend Hesburgh. Well, that was because the first case we 
had after the refugee law was passed by the Congress, the refugee 
law was not applied because they said we're up a creek because 
these are 

Representative McCollum. But they are not in your recommen- 
dations anywhere either to include them. 

Reverend Hesburgh. Well, in our recommendations we really 
felt that there is no way on Earth you are going to hobble a 
President or a Congress and say what they are going to do given an 
emergency. As you will recall, when the Cuban emergency hap- 
pened, it was pretty well cut off at about 50,000, but we were in the 
middle of a campaign. At that point one of the campaigners, Mr. 
Reagan, said we are an immigrant Nation; we should be compas- 
sionate. At that point the other campaigner, who happened to be 
President of the United States, said we receive you with open 
hands and open hearts. That is an invitation for everybody to go to 
Muriel Harbor and get on a boat, which is what they did. 

Now I don't think our Commission can control those kinds of 
actions under those kinds of circumstances, and it seemed more 
honest to control within the legal immigration normal channels, to 
say we go with the refugee law as passed by the Congress in 1980, 
and if there is an additional problem outside of that, it is again so 
speculative and so dependent on emergencies, on a Presidential 
reaction, on a congressional reaction, that there is no way on Earth 
we can calculate it, but we would like to think we are staying with 
the 50,000 in the law. It can be expanded somewhat but I would 
think shouldn't be expanded infinitely. 

Senator Simpson. Thank you very much. I now recognize a new 
member of the subcommittee of the House, who replaced Bob 
Drinan, a person that I greatly enjoyed and with whom I didn't 
always agree. He had some titanic struggles during the last 2 
years. That means you can't run for this job either, Ted, I want you 
to know. I would now recognize Congressman Barney Frank, of 
Massachusetts. 

Representative Frank. Thank you, Senator. 



50 

Father Hesburgh, we are all grateful to you for taking the job 
on. I would like to talk about some of the positive aspects of 
immigration. Before going to Massachusetts I grew up and I went 
to the Statue of Liberty. We ought not, it seems to me, be regard- 
ing immigration totally as a burden. 

For instance, with regard to the guest workers, am I correct? I 
take it that one of the implicit points about the debate about a 
guest worker program is that there is apparently agreement that 
the people who come here from Mexico, many of them are in fact 
very good workers. They are apparently very desirable citizens, and 
there is apparently some willingness to make sure that we keep 
them there. 

Doesn't the thrust that says that we need some guest workers 
suggest that in fact maybe we have a need for some of these 
people? 

Reverend Hesburgh. The problem was you are talking about 
that need over against an unemployment figure of somewhere in 
the area of 7 to 8 percent. And I think again we thought there 
should be flexibility built into the program. If you have many 
millions of people unemployed and everyone coming in 

Representative Frank. I understand. I am not advocating the 
guest worker program. 

Reverend Hesburgh. But on the comments you make about 
Mexicans being good workers, there is just no question about it. In 
certain areas of work they have been absolutely fantastic. 

Representative Frank. I guess the question I have is, If there are 
a group of people in Mexico, and we're talking about the guest 
worker program, who are apparently very desirable workers, ap- 
parently very desirable citizens to have here, or at least residents, 
why stop at letting them be guest workers? Why not let them come 
and be like people? 

Reverend Hesburgh. Yes; you can green card them and give 
them a chance to work, but the fact is that you are constantly 
being pressed by what I think is a very legitimate question, that 
you have 35 to 40 percent of our minority youngsters unemployed. 
You have several millions of other people unemployed because of 
changes in industry, automobile, and other. 

And it just seems to me that the No. 1 obligation of this country 
is to its own minority, its own class that is unemployed and are the 
first ones fired. That is a problem that has been with us a long 
time. 

Representative Frank. That is No. 1. I guess that is the kind of 
moral calculation I would like to get into. The Senate chairman 
raised the question in his statement and it was in the Washington 
Post that if we just project 100 years from now, a third of the 
people in this country will be people whose families weren't here 
today. It makes me a little nervous since I wouldn't be here today 
by that 100-year-ago standard. I know there are linguistic difficul- 
ties but a lot of the people who came in the last 100 years didn't 
talk so good either, and some of us are still having a little difficulty 
with the language, as you can tell. [Laughter.] 

But I understand the constraints, and nobody I guess thinks we are 
going to just throw the doors open. But what is the moral obligation 
of a very wealthy country, in addition to policies which in fact better 



51 

provide for our own needy and our own minorities? What of our 
obligation to share in a world in which there is some inequality of 
resources? And I am for economic development that is going to help, 
but where we have people who want to come here, who want to work, 
who are apparently considered desirable, and if they weren't con- 
sidered desirable there wouldn't be advocacy of a guest worker 
program. 

I just hope that somewhere in our moral calculus there would be 
points given for people, maybe our own are No. 1 but it seems to 
me others can come No. 2. 

Reverend Hesburgh. You're quoting my testimony. 

Representative Frank. Well, how do we translate this into 

Reverend Hesburgh. I think we translate it by enlarging, as I 
said we try to close the back door, which is the illegal entry, as 
much as we could, knowing it will never be closed completely. 
Second, we tried to open the front door a little wider. We were 
criticized for that because we said enlarged immigration is good for 
America. It is part of our heritage. But it can't be simply uncon- 
trolled when we have internal problems with people who have been 
here for 7, or 8, or 10 generations, some of whose relatives were 
brought here by force, who are not able to work. Let us clear that 
problem up and let us realize that is our No. 1 problem, to take 
care of our own citizens. Then we should be as generous as possi- 
ble. 

Let me say, third, and this didn't come up as strongly as it 
should have in my testimony, the only long-range answer is eco- 
nomic development in Mexico, economic development in the Carib- 
bean, economic development in those areas which we can help 
right now as a generous country. 

Representative Frank. The total number of people you would 
allow, you're proposing an increase to what, 375,000? 

Reverend Hesburgh. Yes; we are going from 270,000 to 350,000, 
plus 100,000 a year for 5 years to take up the slack. We have 1 
million people waiting in line right now. 

Representative Frank. Is there an economic constraint that says 
we couldn't take any more in your judgment? 

Reverend Hesburgh. We have put in a new system that clears 
up the illegalities of the past and makes a more rational system for 
the future, and it can be expanded 

Representative Frank. I appreciate that. Father, and I realize it 
is going to be somewhat arbitrary because any cutoff point is. In 
fact the 350,000 seems to me a little on the low side. Do you think 
there is an economic constraint that forces us to cut it off there? 

Reverend Hesburgh. Some people thought it was too high. Some 
thought it was too low. That is what you get into on every commis- 
sion. Let me say that outside of that 250,000 is the number of 
refugees allowed in, the number of asylees allowed in. They are not 
in the quota. Outside of that are all of the reunification of families, 
which would amount to probably another 150,000 a year at least, 
and maybe more. Outside of that are people who are going to be 
legalized, we hope, which may number anywhere from 3 to 6 
million. 

So I don't think we are talking about a niggardly approach. We 
are not talking about an approach which is opening the doors 



52 

absolutely wide. I simply think that there has to be a flexibility 
where this country admits as many as it can, given the current 
socioeconomic 

Representative Frank. I appreciate that. I guess I was a little 
bothered by the tone of some of the questions. It seems to me the 
time to worry would be the time when nobody wanted to come here 
any more. That is when I would start to feel that we had a real 
problem. I think what we have now is a somewhat better one to 
deal with. 

Reverend Hesburgh. Yes; nobody is waiting for a visa to get into 
Russia, among the 16 million refugees in the world. 

Representative Frank. Actually I think my predecessor was for 
awhile from time to time. They considered him kind of obnoxious 
and didn't want to let him visit. 

Senator Simpson. Thank you very much. 

Mr. FucHS. Congressman Frank, if I could just give you the 
numbers so you will have them in the record. Father Ted has 
asked me to put this in the record. 

In addition to the 350,000 numerically restricted, there will be in 
the near term about 150,000 persons who are not numerically 
restricted, and that could go to 160,000, 170,000, as projected over 
the next 50 years. 

So in addition to that, they did keep the refugee emergency 
provision in, and that was the main reason, as Father Ted said in 
the testimony, for the caution on the numerically restricted side. 

Senator Simpson. Well, that concludes this portion of the hear- 
ing, and what particularly impresses me is the cast of Congressmen 
and Congresswomen who will be examining this issue for the next 
2 years. And thank you so much, Father Ted, for your assistance 
and your very expressive testimony. Dr. Fuchs and Dr. Thomas, we 
will be calling you from time to time to just check up. 

Reverend Hesburgh. Thank you both for having us. 

Representative Mazzoli. Father, thank you all very much. 

Senator Simpson. The next portion of the hearing will consist of 
three panelists: Mr. Perry Ellsworth, executive vice president of 
the National Council of Agricultural Employers; Mr. Robert Ne- 
ville, general counsel. National Restaurant Association; and Mr. 
Richard Wright, counsel, Sherman & Howard of Denver, formerly 
executive director of the Mountain States Employers' Council. But 
first we will have a brief 3-minute recess. 

[A brief recess was taken.] 

Senator Simpson. The hearing will come to order and we will 
proceed because we are running behind schedule and do not want 
to inconvenience the people who have come a long way to testify. 

So we have now these three gentlemen I have previously intro- 
duced, Mr. Perry Ellsworth, Mr. Robert Neville, and Mr. Richard 
Wright. Nice to see you. I think you have been advised of the time 
limitations on your testimony. Your entire remarks will be accept- 
ed into the record without any change, but we do have the time 
limitation and the light will be on. Then we will have the questions 
from the congressional panel with the same time limitation as with 
the previous witness. 

Please proceed. 



53 

STATEMENT OF PERRY ELLSWORTH, EXECUTIVE VICE PRESI- 
DENT, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS 

Mr. Ellsworth. Mr. Chairman, my name is Perry Ellsworth. I 
am the executive vice president of the National Council of Agricul- 
tural Employers. Sitting behind me in the light suit is Mr. Ashton 
Hart, who is president of my association and serves as secretary of 
the Valley Growers Cooperative in Milton, N.Y. 

Our rnembership is nationwide and is comprised of individuals, 
companies, and associations working together for a reliable source 
of able, willing, and qualified agricultural labor, within a frame- 
work of equitable Federal laws and regulations. 

Certainly the select commisson had a herculean task to perform 
and I compliment it on the job that it has done thus far. That is 
not to say that my association necessarily agrees with what its 
conclusions have been, but certainly in a job of that magnitude 
there are bound to be some minor differences. 

Because my association and its members profess no expertise on 
the other subjects covered by the Commission's report, my com- 
ments will be limited to those portions which affect agricultural 
employers and agricultural labor. 

My association does not have a specific position for or against 
employer sanction legislation. It does, however, have a definite 
position regarding what must be done if legislation is enacted to 
impose employer sanctions. And they are four in number. 

We suggest that any legislation must have the word "knowingly" 
in there, that an employer shall not knowingly employ an undocu- 
mented worker. 

Second, the legislation must provide a mechanism for review and 
appeal. 

Third, it must provide a reliable means of verifying employment 
eligibility, and we have already discussed that to some extent here 
today. 

And it must be accompanied by a program which will allow 
agricultural employers to speedily obtain workers to make up for 
any U.S. worker shortfall. 

When we get to the question of amnesty, it is no secret that 
undocumented workers are employed in agriculture, and the 
number so employed, however, is far less than half of the total 
undocumented workers in this country. If amnesty is granted to 
those undocumented workers currently in this country, my associ- 
ation's members have a great fear that large numbers, if not all of 
those workers granted amnesty will seek other jobs — year-round 
employment in the cities, where exposure may be greater to border 
patrol activity and why they have not been there up to the present 
time. 

This then brings to mind the need for workers to fill those slots 
which are left vacant by the absence of undocumented workers. We 
were very pleased to see that the Commission has recommended 
the continuation of the H-2 program, and that it be streamlined. 

Now I think there is a difference between what I consider a 
guest worker program, of bringing guest workers into the country, 
sort of the way it was done in Europe, as I understand it, and the 
H-2 program, which is a more specific program based on specific 
situations and specific times and places. 



54 

We suggest, however, that the Commission's recommendation to 
remove current economic disincentives to hire U.S. workers by 
requiring U.S. employers to pay unemployment compensation taxes 
and social security taxes on the earnings of such workers bears 
examination. If you want to get into it, I can list in detail the costs 
that are incurred by any grower who brings in H-2 workers, which 
far exceed any savings that he may realize in those instances 
where he is not required to pay unemployment compensation or 
social security. 

Second, along that same line, my association feels that in princi- 
ple it is somewhat inconsistent and perhaps might even be called 
wrong to require an employer to pay taxes on the earnings of 
temporary foreign workers who will never have an opportunity to 
use the benefits for which those taxes are paid, because those 
workers would be returning to their own country and would have 
no eligibility whatsoever. 

Now I don't know how my time is running, Mr. Chairman, but I 
was asked to go quickly. I have. This has been a very rapid sum- 
mary. I will be willing to answer questions and if I can't we'll try 
Mr. Hart. If he can't, we'll send them to you. 

[The prepared statement of the National Council of Agricultural 
Employers follows:] 



55 



STATEMEOT 
of the 

NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS 

at 

JOINT HEARINGS 

before the 

SUBCCMMTTTEE ON IMMIGRATION AND REFUGEE POLICY 

of the 
U. S. SENATE COMMITTEE ON THE JUDICIARY 
and the 
SUBCCWMITTEE ON IMMIGRATION, REFUGEES AND INTERNATIONAL LAW 

of the 
U. S. HOUSE OF REPRESENTATIVES CCMMTTTEE ON THE JUDICIARY 



The National Coijncil of Agricultural Qnployers appreciates this oppor- 
tunity to make known its views regarding "U. S, Immigration Policy and 
the National Interest," the final report of the Select Conmission on 
Immigration & Refugee Policy. I am Perry R. Ellsworth, Executive Vice 
President of the Council. 

NCAE is a volxmtary membership organization. Its membership is comprised 
of individuals, companies and associations working together for a relia- 
ble source of able, willing and qualified agricultural labor within a 
framework of equitable Federal laws and regulations. 

Comments on the report of the Select Commission will be limited to those 
portions vdiich affect agncultural employers and eigricultural labor. 

Bnployer Sanctions Legislation 

"The Select Conmission recommends that legislation 
be passed making it illegal for ejnployers to hire 
undocumented workers." 

The National Covmcil of Agricultural Eknployers does not have a specific 
position for or against employer sanction legislation. It does, however, 
have a definite jxDsition regarding vdiat must be done if legislation is 
enacted to inqxjse employer sanctions. 



56 



1 . Such legislation nnast contain a prohibition against knovriingly 
hiinjig undocvmented workers. Absence of "knov/ingly" would 
expose employers to unjustified citation. There is no way 
that an employer can be absolutely certain that a document 
presented to establish citizenship or to pi^sve legal authori- 
zation for employment is bona fide. As is the case with every 
law enacted, the overwhelming maJoiTity of citizens vdll abide 
by the law, but there are occasional honest errors. While it 
may be difficult to prove "knowing" action, simple justice 
would seem to dictate the use of the vrord in this instance. 

2. Such legislation must provide a mechanism for p.ppeal. 

3. Such legislation must provide a reliable means of verifying 
employment eligibility. This is especially true in agriculture 
where, unlike a non-agrictoltural bxisiness vdiich hires a limited 
number of persons on any given day, large nvimbers of workers 
are frequently hired at the start of harvest. A procedure 
requiring extra paperwork is not desireable, for agricultural 
employers have every minute of their working hours filled with 
harvest details. This is especially true vdiere a large labor 
force turnover exists or where "day haul" workers are employed. 
Another requirement, peculiar to agriculture, is that employers 
must be able to verify employment eligibility in the field. In 
many parts of the coiintry, workers are hired in the field, work 
in the field and are paid in the field. Their foreman is the 
"personnel director." Such workers may never lay eyes on the 
company's office, much less be processed by it, 

k. Such legislation must be accompanied by a program v^Jhich will 
enable agricultural employers to speedily obtain vrarkers to 
make up for a U.S. worker "shortfall." More on this later. 

Enforcement Efforts in Addition to Employer Sanctions 

"The Select Conmission recommends that the enforce- 



57 



ment of existing wage and vrorking standards legisla- 
tion be increased in conjunction with the enforce- 
ment of employer responsibility legislation," 

The Conmission states that the purpose of this recommendation is ''(t)o 
ensure that employer sanctions and the employee eligibility identifica- 
tion system result in the improvement of vrages and vrorking conditions 
for those authorized to vrork in the United States." 

NCAE and its members find absolutely no fault with the enforcement of the 
laws of this land. Such enforcement should be carried forward even if 
there are no employer sanctions. It seems a little odd, however, for the 
Commission to imply that in some way the enforcement of ^^Tage and hour 
laws will contribute to the enforcement of employer sanctions, Einployer 
sanction laws, if enacted, 3ho\ild be enforced. Wage and hovtr laws should 
also be enforced, employer sanctions or not. 

Legalization 

"The Select Commission recommends that a program to 
legalize undocxmented illegal aliens now in the 
United States be adopted." 

It is no secret that undocumented vrorkers are employed in agriculture. 
The number so employed, however, accounts for far less than half of the 
total undocimented workers present in this country. Exact numbers are 
impossible to ascertain, but for purposes of discussion only , let us 
assvime that there are between 250,000 and 500,000. Were ajimesty to be 
granted to those workers, no one knows whether they would remain at their 
agricultural work or move to urban areas in search of year 'rovmd employ- 
ment. NCAE is inclined to believe such workers would leave agricvilture. 
This woxild create an enormous "shortfall" of agricultural labor— one 

83-514 0-81-5 



58 



v;hich there are insufficient numbers of U.S. workers to fill, NCAE 
believes. If NCAE's viev/s prove correct, the need for a method of 
speedily obtaining workers would be critical. 

Parenthetically, NCAE objects to the statment on page 7^ of the Coninis- 

sion's report: 

"Some Commissioners also believe that legalization 
would acknowledge that the United States has at 
least some responsibility for the presence of imdoc— 
xjmented illegal aliens in the coiintry since U.S. law 
has explicity exempted employers from any penalty for 
hiring them." 

The lav; is clear. Persons must enter this covtntry legally. To infer that 
employers are responsible for not enforcing the law is vn?ong. There are 
probably exceptions, but it is safe to say that very fev;, if any persons 
enter this country illegally with an agricultiiral employer's promise of 
employment. To place the blame on the "pull" of potential employment in 
the United States is to overlook the economic "push" factor at work in 
the country vrtience such persons come. 

H-2 Temporary Workers 

"The Department of Labor should recommend changes in 

the H-2 program which would improve the faimesn of 
the program to both U.S. vrorkers and employers. 

Proposed changes should: 

" •Improve the timeliness of decision regarding the 

admission of H-2 workers by streamlining the ai>- 

plication process; 
" "Remove the current economic disincentives to hire 

U.S. workers by requiring, for example, employers 

to pay PICA and Unemployment Insurance for H-2 



59 



workers; and maintain the labor certification by 
the U.S. Department of Labor. 

" "The Commission believes that government, employ- 
ers and unions should cooperate to end the de- 
pendence of any industry on a constant supply of 
H-2 iTOrkers. 

"The above does not exclude a slight expansion of the 

H-2 program." 

NCAE favors the recommended improvements in the H-2 program. The present 
procedures followed by the U.S. Department of Labor require large expend- 
itures of money, time and papervrark. Each year the result is the same. 
There is a shortage of workers for certain crops and the use of H-2 
workers is approved. 

Present Department regulations require that the U.S. Einployment Service 
must have 60 days lead time to try to fill job orders filed by employers. 
This could be reduced to 30 days. Federal and State offices nov; have 
computers which provide almost instant access to data on available work- 
ers. 

NCAE imderstands that the U.S. Qiiployment Service is vjorking now to reduce 
the present paperwork burden involved in submitting job orders and requests 
for certification for employment of H-2 workers. This is long overdue and 
much appreciated. 

The recommendation to "remove the current economic disincentives to hire 
U.S. workers by requiring, for example, employers to pay PICA and Unemploy- 
ment Insurance for H-2 vrorkers," bears examination. Many voices have 
raised the refrain, but hard, cold statistics refute the charge that there 
is an economic incentive to seek H-2 vrorkers. In pl?in, simple words, 
there is no economic advantage. In fact, H-2 vrorkers .?.re more costly to 



60 



agricultural employers than are U.S. i^orkers, and the use of H-2 workers 
increases the cost of labor, both U.S. and H-2. Consider these facts: 

• With the exception of sugar cane harvest, for vfhich 
historically, employers and the Department have been 
unable to recruit U.S. v/orkers, those grov/ers \.'ho 
utilize H-2 workers also hire large numbers of U.S. 
vrorkers. In fact, in nearly every situation, U.S. 
workers outnumber H-2 vrorkers. This is logical, 
because under Department regulations (20 CPR Part 

655) an employer is required to give first priority 
to U.S. vrorkers. 

' Qnployers who hire H-2 workers must pay, per contract 
vjith the British West Indies Central Labouj:* Organiza- 
tion, transportation from the worker's homo to the 
job site and return. (This money is not advanced. 
BV/I workers borrow it, if necessary, from a Vfest Indian 
bank, Einployers reimburse workers after they have been 
on the job a stated momber of days. Money to pay return 
travel is advanced to workers at the end of the v.rork 
contract.) For Florida sugar cane cutters this amounted 
to $^7^ in 19GO-I981. For apple grov/ers in the north- 
east, the figure was as high as $279» "the average being 
$260 for 19Q0. Were an employer to hire only U.S. vrork- 
ers and not use the U.S. Employment Service, he vrould 
not have to pay for any transportation . 

• EiTiployers who hire H-2 vrorkers must post a bond of $200 
per \rarker to assure workers* return to their ovm 
coTontry. This is not required for U.S. vrorkers . 



61 



" Einployers vjho hire H-2 workers must fuminh free housing, 
built to meet Department of Labor standards, to all 
vrorkers hired. VJere a grovrer to hire only U.S. 
workers and not use the U.S. Employment Ser'/ice, he 
would not have to furnish housing or could charge 
rent for housing furnished . 

• Employers v;ho hire H-2 workers must furnish all xTOrkers 
(U.S. and H-2) with three meals per day for which they 
cannot charge more than ^.4.00 per day unless they receive 
special permission from the Department to charge up to 
$5.00, which is the absolute ceiling. If employers 
hired only U.S. vjorkers there vjould be no reouirement 
to furnish meals and no ceiling on charges if meals are 
furnished . 

" Employers vAo hire H-2 workers must furnish all workers 
free transportation from camp to work site and retxim. 
This requirement would not apply \xnder other circijn- 
stances . 

' Bnployers \gho request certification for H-2 vjorkers 
are required to include, in their Employment Service 
Job Order, assurances that workers will be paid at 
least the Department-^nandated Adverse Effect Wage, 
and are then boiond to pay U.S. v«Drkers at that rate 
even if the Department finds sufficient U.S. vrorkers 
to fill the job order and the employer does not hire 
a single H-2 worker. The Adverse Effect Wage Rate is 
always higher than the prevailing wage rate. If em- 
ployers did no t request certification for H-2 wrkers. 
the loijer preva iling wage rate or the State or Federal 
minimum wage would apply . 



62 



' Einployers who request certification to hire 11-2 \rork- 
ers must guarantee all vjorkers employment for r.t least 
three-fourths of the workday?? in the total period during 
v/hich H-2 workers are employed. This reouirement would 
n ot apply in other circijmstances . 

VJhen one adds up the direct money osts and the indirect time costs 
involved in requesting certification for or hiring H-2 vrorkers, it becomes 
obvious that reduced costs are not a factor. Quite the oppoGit is true. 

It is important to keep in mind that agricultural employers vAio request 
certification for H— 2 vrorkers do so because they are imable to find 
enough U.S. vjorkers willing to do the Job. It is also important to keep 
in mind that employers cannot bring a single H-2 vrorker into this coijntry 
unless and until the Secretary of Labor certifies that there are insuffi- 
cient U.S. workers available to fill the job orders filed by agricultural 
employers. Then, it is important to keep in mind that employers granted 
certification must meet higher direct and indirect costs, ?.s discussed 
earlier, just so they v/lll have enough workers to he.rvest their crops. 



Exactly hov; all of the above facts irork together to provide "disincentives" 
to the hiring of U.S. workers is rather difficult, if not impossible to 
grasp. 

Purthennore, it seems totally inconsistent with the intent of both the 
Unemployment Insurance and the Social Security programs to require pay- 
ment into the funds on behalf of persons who will not be able to benefit 
from them. H-2 vrorkers are temporary workers. They may never return to 
this coiontry a second time. They are not citizens of the United States. 
Agricultural employers do not object to paying both taxes on the earnings 
of U.S. workers. In fact, they do so. Agricultural employers do object, 



63 



however, to paying taxes into a program designed to give :;orkers certain 
protections vAien those very workers are nov; and alv/ays viill be ineligible 
to receive benefits from that program. It is extremely difficult to 
understand how forcing employers to pay such taxes on the earnings of 
such vTOrkers will protect U.S. vrorkers when H-2 workers crxmot be admit- 
ted as long as there are U.S. vrorkers available and vdlling to take jobs 
offered, 

NCAE supports the recommendation of the Commission that steps be taken to 
end the need for H-2 v/orkers. Certainly, the easiest possible course of 
action for employers is to hire U.S. workers, but until employers can find 
enough U.S. vrorkers able and vri-lling to fill their needs, the H-2 prograjn 
must be improved and continued. 

The statement that the Conmission does not exclude a slight expansion of 
the H-2 program is vrelcomed. Let the record shov;, hoi-rever, that agricul- 
tinr'al employers are not opposed to a contraction of the program ±f^ there 
are enough good U.S. vrorkers available. 

In recent years, there has been a hue and cry raised chrougho\it the land 
regarding the employment of undocumented vrorkers. In an effort to reduce 
the number of such workers in agriculture, several voices have suggested 
the use of H-2 workers. "You v-d.ll at least hr.ve a legal vrork force," 
they said, "and vdll not contribute to the 'pull' of undocumented vrorkers 
to this covmtry." The moment employers made their first move toward drop~ 
ping their illegal work force in favor of using H-2 vrorkers, the Depart- 
ment of Labor "lovjered the boom" on them, making the process almost 
impossible for those growers. At times it even resulted in lavj suits. 
NCAE supports the H-2 program as a viable alternative to the hiring of 
undocvimented vrorkers, and virges U.S. Department of Labor cooperation to 
that end. 



64 



Finally, the number of H-2 workers admitted into this covmtry for agri- 
cultural employment is miniscule when compared to the tota.l agricultural 
work force of over 2 million persons. NCAE feels that objections voiced 
are greatly out of proportion to the actual situation. 

The National Council of Agricultural Employers stands ready to furnish 
additional information if requested. 

Representative Mazzoli. Thank you, Mr. Ellsworth. We appreci- 
ate that. What we would like to do is continue with your panelists 
and then to follow up with questions. So Mr. Neville, you may 
proceed, please. 

STATEMENT OF ROBERT NEVILLE, GENERAL COUNSEL, 
NATIONAL RESTAURANT ASSOCIATION 

Mr. Neville. Mr. Chairman and members of the subcommittees, 
I am Robert Neville. I am the general counsel for the National 
Restaurant Association. We appreciate the opportunity to express 
our views on only one aspect of the Commission's report, and our 
views as a business league will be confined to that one aspect of the 
Commission's recommendations that legislation be passed making 
it illegal for employers to hire undocumented workers. 

Unfortunately, the Commission was apparently unable to resolve 
the problem that has now come to you. The Commission was in 
general agreement that there should be a sanction against employ- 
ers, and we don't disagree with any of the Commission's conclu- 
sions on that score. But they were almost evenly divided in how to 
go about that, and I would like to restrict my comments today to 
some suggestions as to how you might address the problem. 

Our principal concern is with the soundness and the essenstial 
fairness of merely shifting the main thrust of the enforcement 
burden from the Government to the employer. I think all of you 
recognize that and I think Father Hesburgh recognized it far more 
eloquently than I can. In fact, Father Hesburgh has said every- 
thing that I can tell you today. I will continue my statement only 
on the off chance that I add some new light to what he has already 
told you. 

We feel very strongly that requiring employers to make determi- 
nations of the status of their employees as job applicants involves 
them in intricate problems of constitutional and immigration law. 
As Father Hesburgh pointed out, the immigration law is generally 
reputed to be about as complex as our Tax Code. And we don't 
believe that employers generally, and particularly in our industry, 
which is made up largely of small businessmen and women, that 
they are equipped to handle this kind of problem. 

In order to avoid the problems that would arise if you pass a 
simple statute imposing sanctions on employers who hire undocu- 
mented aliens, in order to avoid those problems and the adminis- 
trative recordkeeping burden that may go with such a simple law, 



65 

most of our employers, we think, to protect themselves, would 
adopt a general play it safe attitude. And this was a point that 
Father Hesburgh elaborated on a great deal and we certainly 
share, although we hadn't seen his views before, we share his fears. 
We feel that employers generally would simply be unwilling to 
take a chance on different looking and sounding Americans, what- 
ever those may be. The seemingly inevitable result would be dis- 
crimination in employment, as we see it. 

In all fairness, we think that the Government must provide the 
means by which an employer can easily determine whether a 
person is eligible for employment, and this guidance should be 
clear, simple, objective, and should not increase the businessman's 
already considerable recordkeeping and paperwork burden. 

It should also be clearly delineated in the legislation itself and 
not left to the interpretation and continuous refinement of various 
Government agencies. And we think it is possible to do that. 

During the hearings on the 1975 bill to impose sanctions on 
employers who knowingly hire undocumented aliens, the then at- 
torney general proposed that the law include a prohibition of pay- 
ments of Federal funds to illegal aliens. But he pointed out that he 
knew of no existing procedure by which Government employees 
who were charged with enforcing this could determine whether an 
applicant or recipient of Government funds is lawfully in the 
United States. 

And the point I want to make is that if Government employees 
can't make that determination, neither can employers in the gener- 
al field of business. 

Mr. Chairman, my whole suggestion to this subcommittee today 
is that we are concerned that employers — we want it to be fair for 
both prospective employees, job applicants, and employers. And we 
are concerned that the employer not be placed between the rock of 
the Justice Department and the hard place of the EEOC. And that 
is where a law that is not precisely drawn and not simple to 
administer will place them. 

I realize that the Commission has wrestled with these problems 
and Father Hesburgh has stated the position far more eloquently 
than I, but that is the information that I have to give you this 
afternoon. 

[The prepared statement of the National Restaurant Association 
follows:] 



66 



TESTIMONY OF THE NATIONAL RESTAURANT ASSOCIATION 

ON 

THE REPORT OF THE SELECT COMMISSION ON IMMIGRATION 

AND REFUGEE POLICY 

BEFORE 

THE SUBCOMMITTEE ON IMMIGRATION AND 

REFUGEE POLICY, U.S. SENATE, AND 

THE SUBCOMMITTEE ON IMMIGRATION, 

REFUGEES, AND INTERNATIONAL LAW, U.S. 

HOUSE OF REPRESENTATIVES 

MAY 5, 1981 

Mr. Chairman and members of the Subcommittees, my name is 
Robert Neville. I am general counsel for the National Restaurant 
Association. 

The Association has about 10,000 organizational members and 
through the membership of many firms operating multiple units we 
represent over 100,000 foodservice establishments all across the 
country. Our affiliation with 47 state restaurant associations 
increases this number significantly. Our industry employs over 
five percent of the nation's workforce and is the largest retailer 
in terms of numbers of establishments, the vast majority of which 
are small business. 

We have been invited to express our views on the Final Report 
and Recommendations of the Select Commission on Immigration and 
Refugee Policy. We appreciate the opportunity to do so. Our views 
as a business league will be confined to the Commission's recommen- 
dation that legislation be passed making it illegal for employers 
to hire undocumented workers. The Commission favored employer sanc- 
tions by a large majority, but appears to have split nearly evenly 
on whether these sanctions could rest upon some existing form of 
identification or whether some system of more secure identification 



i 



67 



is needed before employer sanctions are applied. Because of the 
wide diversity of views among members of the Commission, this issue 
is not clearly resolved in its Report. Since it directly affects 
all employers in our industry, we offer the following obsei vat ions . 
At the outset, we want to make clear that our association does 
not condone the knowing hire of illegal aliens. We recognize the 
many economic and social problems that the presence of large numbers 
of illegal aliens create and the necessity to seek reasonable solu- 
tions to those problems. We are deeply concerned, however, about 
legislative proposals which seek simple solutions primarily by 
prohibiting the employment of undocumented aliens. It is very 
important that all the effects of such an approach on the business 
community - particularly the small businessman - be carefully con- 
sidered and evaluated before adoption. 

?s Mr. David Carliner, representing the American Civil Liberties 
Union, observed in testimony before the Subcommittee on Tmrnigration, 
Citizenship and International Law of the Committee on the Judiciary, 
House of Representatives, in 1975, "Before an employer can be 
prosecuted for the purpose of a citation, a fine, or an ultimate 
criminal penalty, as we know he must be guilty of willful conduct 
and the only way in which willful conduct can be established on 
his part is to have some kind of mechanism whereby the employer 
knows that the alien he is about to employ is here illegally." 

Our principal concern is with the soundness and fairness of 
merely shifting the main thrust of the enforcement burden from the 
Government to the private employer. Congress should first carefully 
consider whether it is, in fact, equitable to shift to the private 
sector this enormous task which is, in reality, rightly a function 
of the Government. Enforcement of our existing laws prohibiting 
aliens from working and preventing illegal entry in the first place 
is, after all, the proper role of the Government. It is essential 

that the decision as to who will bear the main responsibility in 
this troublesome area be carefully evaluated at the outset. This 
evaluation process should include a full appreciation of the exist- 
ing burdens imposed on the private employer, such as recordkeeping, 
paperwork, compliance with regulations growing daily in number and 
complexity, etc., and his ability to absorb an additional investi- 



68 



gative role with the attendant increased costs and risk of penalties. 

Requiring employers to make determinations of the status of 
their employees and job applicants is involving them in intricate 
problems of constitutional and immigration law which most are just 
not equipped to handle. It is a difficult and complex task and 
most employers simply do not have the necessary investigative 
resources to protect themselves against an inadvertent violation. 
In order to avoid the additional administrative burden and expense 
and to protect himself from possible prosecution, the businessman 
is most likely to "play it safe." He would be reluctant to hire or 
keep in his employ anyone who did not have clear documentation and 
would be particularly wary of those with foreign accents and racial 
characteristics. He simply would be unwilling to take a chance on 
"different" looking and sounding Americans. 

The Mexican American Legal Defense and Educational Fund and 
the U.S. Civil Rights Commission have both expressed a similar concern 
over this potential encouragement to discriminate as the only safe 
course for an employer to follow. 

The seemingly inevitable result would be discriminatory employ- 
ment practices against those who could not easily and clearly prove 
that they were legally entitled to work. This, of course, would be 
totally unfair to those being discriminated against, but it also 
would place the businessman in a precarious position as well. In 
his efforts to comply with his responsibilities in the undocumented 
alien area, he could easily find himself facing charges by t-liose 
government agencies responsible for enforcing our laws prohibiting 
discr imi.^ation in employment. It is not fair to place our nation's 
private employers in this "Catch 22" predicament. 

We feel strongly that if the Government, for whatever reason, 
decides that any solution must involve the business coiTununity , 
then it should also include some mechanism which will provide the 
employer with clear and objective guidelines upon which he can base 
his actions with assurance that he is acting within the law. 

In all fairness, the Government must provide the moans by 
which an employer can easily determine whether a person is eligible 
for employment and this guidance should be clear, simple, objective, 
and not increase the bus i nnssman ' s already considerable recordkeeping. 



69 



pajjorworr;, and other administrative burdens. It slioiild also be 
clearly delineated in the legislation and not left to the interpre- 
tation and continuous refinement of the cognizant government agencies. 
Some have suggested that the Social Security card be used as the 
identity mechanism, while others have opposed this approach as 
smacking of a police state. Whatever form it takes, we are convinced 
that such a clear and simple procedure is absolutely essential to 
employer involvement. 

While the focus heretofore has been on the employer's role in 
the solution to the undocumented alien problem, any overall plan 
must also include active participation and accountability by the 
various government agencies charged with administering the existing 
social welfare and assistance programs -- welfare, foodstamps, hos- 
pitalization, schooling, day-care centers, etc. The provision of 
these benefits to undocumented aliens is certainly part of the overall 
problem, as their availability is a factor in attracting undocumented 
aliens to this country. If the task of denying employment is to 
be placed on the private employer, the cognizant government agencies 
should bear an equal responsibility to deny benefits to ineligible 
recipients. If it is to be an offense for an employer to hire an 
illegal alien, in fairness, the government official administering 
any of the benefit programs should be held to the same accountability. 

During hearings in 197 5 on a bill to impose sanctions on 
employers who knowingly hire undocumented aliens, the then Attorney 
General proposed that the law include a prohibition of payments of 
Federal funds to illegal aliens, but he pointed out that he knew 
of no existing procedure under which government employees charged 
with administering these funds could determine whether an applicant 
or recipient is lawfully in the United States. Employers are in 
the same situation. 

Prior proposals to impose sanctions on employers have usually 
included provisions for penalties for each undocumented alien in 
the employ of the employer on the effective date of the Act. It is 
important to recognize that as a practical matter, under such a 
provision, every employer who wished to protect himself would need 
to check, verify, and document the status of all his employees. This 
presents a monumental investigative and recordkeeping task and 



70 



raises many serious questions as to how best to go about it. Many 
citizens do not possess readily acceptable evidence of their citizen- 
ship. 

If, as many members of the Commission seem to feel, sanctions 
against the employer should be based upon some existing form of 
documentation, the employer will be left to his imagination. Out 
of an abundance of caution, he can and probably would add a great 

deal of recordkeeping and documentation to his employment process. 
Even so, it will dnly afford him the limited protection of a i ebut- 

table presumption that he has not violated the law. 

In summary, Mr. Chairman, we are concerned that the employer 
not be placed between the rock of the Justice Department and the 
hard place of the Equal Employment Opportunity CoiTL-'ission . If 
sanctions are to be imposed on an employer for the knowing employ- 
ment of undocumented aliens, we urge that Congress give him clear, 
simple, and objective procedures to follow in determining that an 
applicant is eligible or ineligible for employment. I realize that 
the Commission wrestled with many of these questions we have raised, 
but I perceive no clear cut answers in their report. 

Thank you for the opportunity to express our concerns. I will 
be happy to try to answer any questions you laay "".a/e. 



71 

Representative Mazzoli. Certainly your statement is very help- 
ful to us. Mr. Wright, you may proceed. 

STATEMENT OF RICHARD W. WRIGHT, COUNSEL, SHERMAN & 
HOWARD. DENVER, FORMERLY PRESIDENT, MOUNTAIN 
STATES EMPLOYERS COUNCIL 

Mr. Wright. Mr. Chairman and members of the committees, I 
am pleased to have this opportunity to appear before you. My 
name is Richard W. Wright. I am from Denver, Colo., and I appear 
here as an individual and I speak for myself and not any organiza- 
tion or group. 

Just so that you may know of the perspective from which I 
speak, I retired early this year after 35 years with the Mountain 
States Employers Council, a regional industrial relations organiza- 
tion with over 800 employers who do business in Colorado, Wyo- 
ming, and New Mexico. They are all different sizes and all differ- 
ent types. 

During my time with that organization, most of the time as the 
chief executive officer and more recently as general counsel, I 
became familiar, I expect, with 2,000 or more employers and have 
spoken with thousands more employees and employers. And I 
think that I have a particularly good understanding of their con- 
cerns and problems as they may affect personnel and labor rela- 
tions matters. 

I also know that whenever the employer really understands the 
urgency of a situation, and even when they are just imposed with 
onerous regulations, that they seek in good faith to comply. 

I think that we have a crisis in immigration policy and from 
what I have heard today we can really agree here that it's in 
shambles; that we have an ill-defined policy badly administered 
and poorly enforced; and that we must do something about it. 

workers' identification system 

I have two suggestions. One has been covered broadly today, and 
that is the idea of a worker's identification card with employer 
sanctions, which has been spoken to by so many. I participated in 
the Denver hearing of the Select Commission a year ago and I was 
not in favor at that time when the question was raised as to 
whether or not there should be employer sanctions. I have come 
full circle as I have gotten more into the problem and as I have 
understood that this is really the only practical way that we can 
set about to control the flow of immigration into this country. We 
must have a simple worker identification card, or some kind of an 
identificaton system, the details of which I will leave to those more 
knowledgeable than I, upon which the employer may rely in grant- 
ing employment to an alien, and in which the employer may be 
safeguarded from harassment and onerous regulations. 

I would also say in connection with this area that I am quite 
concerned about the question of legalization or amnesty with one 
stroke of the pen. It has been said by Father Hesburgh, and by 
Congressman Lungren, who cited a study from San Diego, that 
many of these undocumented immigrants who come into this coun- 
try will leave again shortly. I would like to see a period of time 
when we would see if this could not work itself out, because the 



72 

theory of the identification card is that if there is not U.S. employ- 
ment without a card then there will not be any great attraction to 
come here. And as these people return to their own country and 
realize that there isn't work, should they return, they may elect to 
stay home. 

LIMIT ON TOTAL IMMIGRATION 

The next point and the final point I would like to make is that I 
would like to see a definite ceiling upon the number of immigrants 
who come to this country. Now how that number may be divided as 
between refugees, as between different classes, I think must be 
discussed and reasoned out. But we should decide upon a figure, 
whether it is based upon the kinds of extrapolations that were 
given here today or in some other manner. And then if that figure 
is changed, it should be focussed upon by the Congress and be 
given the kind of attention and publicity and the responsibility 
fixed for the changing either upward or downward. 

But without a firm budgeted figure forcing this kind of process 
upon us all, I think we will give way to special interests and not 
have a good situation. 

Finally, before I got on the plane yesterday I met with a woman 
from Washington who was seeking to relocate in Denver, Colo., 
after 10 or 12 years of working for one of the departments here in 
Washington. After I had sought to give as much help in advising 
her as I could, I told her of my assignment today and she blanched 
and said, "You have a no-win position." I said: "What do you mean 
by a no-win position?" She said, "Well, you are beset with all kinds 
of special interests. You have all different kinds of religious groups. 
You have all different kinds of people and organizations — there is 
just no way to come out of it." 

Well, I don't believe that this is a no-win situtation. I believe 
that we have a crisis. I believe from what I have heard today and 
from what I know of you people that you recognize that. I know 
people I talk with realize that there is a crisis, and I think this 
committee and the Congress will face up to it and get the job done. 

I have known three generations of Senator Simpson's family. I 
came originally from Wyoming. And I am sure that there are a 
number of you of the same cut, cowboy or not, who will face up to 
these problems. Thank you very much. 

[The prepared statement of Mr. Wright follows:] 



73 



Prepared Statement of Richard W. Wright 

Mr. Chairir.an and members of the Subcommittees on 
Immigration and Refugee Policy, I am pleased to have this 
opportunity to testify today on the report of the Select 
Commission on Immigration. I am Richard W. Wright, 2900 
First of Denver Plaza, 633 17th Street, Denver, Colorado 80202. 
I speak for myself, as an individual businessmian , not for any 
organization or group. Let me tell you something about my past 
experience, to give you an idea of the perspective from which I 
speak. 

During the period 1946 until early this year, I was 
associated with the Mountain States Employers Council, a regional 
employers association which serves as a central industrial rela- 
tions, personnel, labor relations and research organization to 
more than 800 employers doing business in Colorado, Wyoming and 
New Mexico. This employer membership includes practically all 
sizes and types of business and industry, and in my capacity as 
President and more recently as General Counsel, I had occasion to 
become especially familiar with their problems, concerns and 
positions, particularly in the areas of personnel, labor and 
governmental regulation matters. I have also served as a 
corporate director of several businesses , including an international 
airline and a company with a number of plants located in 
Colorado, Nebraska, Washington State and California, producing a 
variety of clothing items. I retired from the Mountain States 
Employers Council early this year after 35 years of this experi- 
ence in business and industry. Prior to that, I was a Special 
Agent of the F.B.I. I am now of Counsel to a law firm in Denver. 

In my position as President of the Mountain States 
Employers Council, I have worked with perhaps 2000 businesses in 
the past 35 years. I have spoken with additional thousands of 
employers and employees. And I want to stress one thing to you 
as you consider what the "business" reaction to the report of the 

83-514 0-81-6 



74 



Select Commission may be. Businessmen are citizens. We are con- 
cerned with the welfare of this nation. When there is a crisis 
confronting the United States, their first concern is always for 
the good of the United States. 

We have been subjected to numerous regulations over these 
years and onerous as many of them have been and continue to be, 
there is always a good faith endeavor to comply in word and spirit. 
This is particularly so when there is an understanding of what 
the regulations are intended to accomplish in order to meet a 
national crisis. 

I believe that the United States is in such a crisis 
today, a crisis of illegal immigration which is uncontrolled and 
a crisis of immigration laws which are in shambles. I think 
that the great majority of businessmen who are aware of this 
problem agree with me and are willing to accept those burdens 
necessary to get these crises under control. 

I believe that the Select Commission on Immigration and 
Refugee Policy was correct in their conclusion that firm measures 
must be taken to bring immigration under control. I applaud 
their conclusion, and the deliberations which brought such diverse 
interests to accept this conclusion. 

I believe that the overwhelming evidence that illegal 
immigration is against American interests has moved many of us to 
positions that we would not have taken even a year ago. I myself 
have changed my position on a vital issue. Last year, I testified 
before the Select Commission on Immigration and Refugee Policy in 
Denver, and I also participated in a Symposium sponsored by the 
Population Council. Both times when the question was raised, I 
opposed making it against the law to hire illegal immigrants. 
Both times, I said that I believed there were already too many 
employer sanctions with which business had to cope. 

I said then that I did not think employers should be 
subject to the fear, the risk of being entrapped through the 
innocent hiring of an illegal immigrant; and I said that I did 



75 



not think there should be an elaborate bureaucracy built to 

enforce such a law. Those were my objections then to an employer 

sanctions law. I still believe that they are valid problems 

that are of particular concern to businessmen, and I believe that 

they must be addressed by any employer sanctions law which is 

written. 

But I no longer believe that the United States should 

not have an employer sanctions law. I have been convinced 
through my experience, my further reflection, conversations with 
business people and through the learning process which the 
Select Commission has been for all of us, that it is a vital and 
necessary part of immigration law reform to make employers liable 
for their knowing and willful employment of aliens who are in the 
United States against the law. 

The objections which I raised on those earlier occasions 
are legitimate objections which, I have come to believe, are not 
insurmountable. These are difficulties which can and must be 
resolved. Under laws already existing, virtually all employers 
have been required to establish procedures to assure that 
employees are not discriminated against in their employment because 
of race, sex, age or religion. Also, employers are required to 
withhold money for income taxes, social security and other govern- 
mental purposes. In order to carry out these obligations, certain 
information and facts may or even must be obtained from the 
applicant for employment. A simple and uniform system of verifi- 
cation of citizenship status would impose no great additional 
burden on the legitimate employer who has these procedures for 
employment already in place. All that would be necessary is an 
identification card system which could be easily verified and 
which would provide safeguards for the employer who acts in good 

faith. 

Indeed, compared to the complexity of other employment 

requirerrents, such a procedure would be relatively painless. 

Should such a system become effective this year, we could begin 

to establish a bona-fide standard of legality for employment. 

In time, it would become firmly established that only legally 



76 



admitted aliens could expect to gain employment. The work 
incentive to enter illegally would be removed. 

While I can speak only for myself, I believe from my 
experience that I can assure these Committees that a well-designed 
employer-sanctions law for which the urgent need is communicated, 
can and will be accepted by American businessmen. And more than 
that -- I believe that the great majority of American businessmen, 
who do not employ illegal immigrants and who have no wish to do so, 
will welcome not having any longer to compete with the unscrupulous 
few who hire illegal immigrants out of preference. 

There is one issue not directly related to employer 
sanctions which I would like to mention to these Committees. That 
is the matter of a ceiling on legal immigration to the United 
States. When my friends, knowing of my interest in immigration, 
ask me what ceiling the Select Commission recommended for legal 
immigration, I have to say that 1 don't know. I don't know how 
many legal immigrants would be able to enter the United States 
under the recommendations of the Select Commission. There is one 
recommendation to increase the numbers of people who come to the 
United States in the quota categories, and yet another to take 
two groups of people currently covered by quotas out of those 
quota categories. There is then a third recomn.endation that 
close relatives of U.S. citizens and refugees not be covered by 
any effective ceiling. 

Perhaps the Select Commission recommendation is not 
designed to be confusing, but I know that it is extremely so. 
I firmly believe that there must be a comprehensive ceiling on all 
our legal immigration. I understand that the Commission 
considered a ceiling on immigration, but rejected the concept on 
the grounds of flexibility. In today's climate, any argument made 
by a governmental agency or department to our Budget Director, 
David Stockman, that: "We can't have a ceiling on our expenditures 
— we have to have flexibility," would not wash. It seems to me 
also that from the perspective of a businessman, immigration can 
and should be specifically budgeted, too. Only then will the 
processes work as they are intended. 



77 

Representative Mazzoli. Thank you very much, Mr. Wright. The 
Senator has returned. You were just talked about very glowingly 
by the gentleman, Mr. Wright, who is a former Wyoming man. 

Senator Simpson. I remember Mr. Wright. 

Representative Mazzoli. I'll start with 5 minutes while the Sena- 
tor gets readjusted. 

Let me mention with respect to what Mr. Wright said, I think 
the fact that you have seen this kind of turnout of our panel today, 
and the fact that we have, with the great help of the gentleman 
from Wyoming, this kind of a joint panel itself is an indication that 
we are dead serious about this, finally. It is going to be vexing, and, 
as I said earlier, politically perilous to everybody s health. The fact 
is that not to do something is even more politically perilous and 
more morally perilous, to talk as our friend Barney Frank might. 
So I think that we will definitely come to grips with this issue. 

I will ask you gentlemen the same question, if I might. Assuming 
that we had a kind of card that Father outlined — for example — the 
social security card which is made counterfeit proof by implanting 
some tape, or by the use of a picture, or a thumbprint — how would 
you, and I will ask each one sequentially, envision this to be 
handled by the employer? Mr. Ellsworth, how would you envision 
the employer to handle it, and, specifically, what would happen if 
the INS came through and the individual did not have the card 
with him or her that was exhibited to the employer when the job 
was sought? How would you handle that? 

Mr. Ellsworth. Let me see if I can take those in the order in 
which you gave them. First, agricultural employers, as I wrote in 
my full statement, need a system that is operable anyplace. 

Representative Mazzoli. In the field, for example. 

Mr. Ellsworth. In the field, in an office, anyplace. Therefore, a 
magnetic card or a thumbprint is rather useless if you are out in 
the middle of 300 acres. So the picture would be the answer and 
would have to be as nearly as possible accurate. 

Now there is a big question of what age a person gets that social 
security card, and I daresay if they had taken my picture the first 
time they gave me my card you would have trouble recognizing me 
today. 

Second, I'll go back to the statement that has been made by 
others that the employer can only be a policeman to the extent 
that he views that card, that he sees it, and that he has followed 
that procedure. If you are going to impose paperwork on an em- 
ployer beyond that which he normally needs for his payrolls, which 
may include taking that social security number from that card, if 
you are going to require him to check the authenticity of it some 
way, then I think we are back to where we would say this is not a 
workable situation for many of our employers. 

If the INS came through and rounded them up, we would like to 
be in the position to say look, we did our best with this evidence 
that was presented to us at that time. The fact that a worker does 
not have that card now is something we should not be hung for. 

Representative Mazzoli. So the fact that the employer first 
viewed the card, then there would be no further evidence of that 
fact in some record? That would be just an averment that would be 
made by the employer to the INS people, for example? 



78 

Mr. Ellsworth. I suspect there has to be some proof some place 
of having seen the card, but what I would like to avoid is massive 
paperwork. 

Representative Mazzoll Mr. Neville? 

Mr. Neville. I agree with what Mr. Ellsworth has said. I would 
like to add that it would seem to me to be a rather simple proce- 
dure for the employer in the application form or whatever record 
that he keeps to have a simple check made that he has seen the 
card and it is the card that belongs to this particular person, 
whatever means of identification there is. 

Let's face it. We will have 250 million people carrying these 
cards, and a lot of them are going to change their appearance, as 
we all do with the passage of years, and a lot of them are going to 
lose their cards. So whatever system is envisaged will have to 
involve all of these considerations, the administrative consider- 
ations that will be involved in keeping people supplied if they are 
going to be subject to challenge at any particular time. 

Representative Mazzoll Thank you. Mr. Wright? 

Mr. Wright. I was reading an article last night on fraud of 
credit cards, and it was pointed out that there were nearly 1 billion 
credit cards floating around this country of American Express, 
VISA, bank cards and so forth. If half of our population were 
employed, we would have 112 million, 117 million, and many 
people employed don't move around. It seems to me, compared to 
the credit card problem, a relatively simple kind of thing to be able 
to check through a computer, as American Express or VISA or 
some of these organizations do, on some kind of a basis to get this 
done. 

I don't know too much about agricultural employers, but other 
classes of employers have been using all different kinds of screen- 
ing procedures for a long time. They have to have a social security 
number and other data to process employment. I don't think it 
would be any particular burden for most employers. 

Representative Mazzoll Thank you very much. My time has 
expired. Thank you, Mr. Chairman. 

Senator Simpson. Mr. Ellsworth, do you have any figures to 
support the idea that foreign workers are more expensive when 
you consider all tax payments made on behalf of U.S. workers, 
when all that is taken into account? Where are your figures there? 
You make that assertion. 

Mr. Ellsworth. I make the assertion by virtue of the present 
regulations which the Labor Department imposes upon those who 
use H-2 workers, and the cost of bringing H-2 workers to a jobsite, 
again under that regulation. 

Now if we compare the cost that an agricultural employer expe- 
riences who hires his workers either through an advertisement of 
his own or as they come to the door, and has none of the require- 
ments imposed on him by the Labor Department, then his costs are 
practically nil. 

Under the Labor Department regulation, he would have to 
engage in recruiting of workers and checking with workers 
throughout the entire United States, wherever the Labor Depart- 
ment might find workers to be available. He might do this by 
phone; he might do it personally, but he will have to do it. 



79 

Second, there is the matter of transportation, and with the use of 
the present H-2 program, at least with the British West Indies 
central labor organization, and with U.S. workers, if an employer 
seeks certification for H-2's, he would be required to pay their 
transportation to his place of work and either to the next job or 
back home. 

Users of H-2 workers at the present time have to post a bond 
and they have to provide free housing, they have to provide meals 
which are limited to a very maximum of $5 a day per worker, and 
all of these things add to costs. Senator, which the farmer who did 
not use those workers and used U.S. workers has no obligation to 
provide at all. 

Senator Simpson. Mr. Wright, it is good to see you again. I 
remember our visit in Denver. I recall a question I asked you at 
that hearing. In response to a question of mine about employer 
sanctions, you had some very negative things to say about that, 
terrible things. You said very sincerely that it was unworkable and 
inhumane. And now I think you indicate that you have a different 
view of that. 

Why have you changed your mind on that issue? I think it would 
be good if you could share with the subcommittees your change in 
thinking because it is something that came to pass with the mem- 
bers of the Select Commission also. 

Mr. Wright. Well, I have come to the foot of the cross. Senator, 
and for the reason that it is the only practical way to control, it 
seems to me, the illegal or undocumented alien. We surely can't do 
it by trying to man 6,000 miles of border. We can't do it through a 
tremendously enlarged immigration patrol. And from a very practi- 
cal point of view, if all of us without exception carry some form of 
worker identification card, whether it is a new social security card 
or whatever it may be, and if employers may legally hire only legal 
persons, I think it takes away the incentive for aliens to come to 
the country. 

And as I've thought about it, I remember I wrote Mr. Fuchs and 
asked him for the name of the professor who testified in favor of 
such a system who said that he was a member of the American 
Civil Liberties Union. I was appalled that he would suggest such a 
card, and Mr. Fuchs sent me this material and I realized that 
practically this was really the best way to go about it and didn't do 
violence to anyone. 

As I told Mrs. Schroeder, you find yourself with a lot of strange 
friends and allies when you get into immigration and naturaliza- 
tion issues. 

Representative Schroeder. When he said it to me, he said some- 
thing about bedfellows. [Laughter.] 

Mr. Wright. I was talking about other people, Pat. 

But that in essence. Senator, is why I have come around that 
way. 

Senator Simpson. That is a similar type of thought process that 
occurred among the members of the Select Commission. 

I might ask Mr. Neville, and I remember visiting with one of 
your colleagues when we were together on a panel, about employer 
sanctions. If a secure verification system were available, whatever 
we might reach through legislation, so that an employer trying to 



80 

comply with the law was well protected, like a liquor dealer being 
well protected against losing his business, by virture of a job appli- 
cant simply presenting that card, would you then be supportive of 
the employer sanctions, or do you think you could sell that to your 
troops? 

Mr. Neville. I don't think we would have any problems selling 
it. Senator. Their principal and really sole concern is not to find 
themselves caught in a bind that they can't get out of, so that they 
are left with this really Hobson's choice of either discriminating in 
their employment practices or taking the big risk of hiring some- 
body and having the Justice Department say well, all the evidence 
that you collected really wasn't enough, or you did have some 
doubts about this person and you should have reacted to those 
doubts. Therefore you knowingly hired them. 

Nearly all the businessmen I know are law-abiding citizens. If 
you set up a system for them to follow, they will follow it. 

Senator Simpson. Thank you. I now recognize Congressman Fish. 

Representative Fish. Thank you, Mr. Chairman. It is my sense 
that the panel, after listening to Father Hesburgh and understand- 
ing that the Commission is very well aware of the problems that 
you saw in the employer sanction and the responsibility laid on the 
employer, that really what we were saying in the Commission was 
that we would have a foolproof eligibility document that an em- 
ployer could rely on, and that no more than a phone call into a 
computer bank would verify the fact that that was a legitimate 
document. I think that is very important to realize. 

Now I am going to ask a couple of questions and anybody who 
wants to answer them may. They have to do with the H-2 workers. 
Would the enactment of an effectively enforced employer sanction 
program increase the demand of industry for H-2 workers? Mr. 
Ellsworth? 

Mr. Ellsworth. Well, if I can start with that one, I think it 
would in agriculture. It will require a supplemental work force and 
some speedy procedure to get those workers. Now I can't say. 
Congressman, that that will happen every year, that it will be in 
any specific number. The only precise location I can say with some 
degree of certainty where it will happen is in the harvest of sugar- 
cane in Florida where for years and years they have been unsuc- 
cessful by all methods in finding U.S. citizens to cut cane. 

Representative Fish. Mr. Neville? 

Mr. Neville. We don't have many H-2 workers within our indus- 
try. We do have some in resort areas but it is a very small percent- 
age. 

Representative Fish. Can anybody answer this? What effect 
would the granting of legalization have on the future demand for 
H-2 workers? 

Mr. Ellsworth. That will depend on whether my association's 
analysis of the situation is correct. If we grant amnesty to those 
who are currently working in agriculture as illegal or undocument- 
ed workers, and if those workers leave, as we figure a great 
number of them will, then we are going to have a labor shortage in 
agriculture, and many of those areas will be in places not necessar- 
ily in the South or on the east coast, but on the west coast and in 
the far Northwest. So I think we will have a shortage. 



81 

Representative Fish. Mr. Ellsworth, you indicated approval of 
the Commission's recommendation that the Department of Labor 
should improve the timeliness of decisionmaking regarding the 
admission of H-2 workers by streamlining the application process. 
In your written statement you suggest reducing the Department's 
lead time from the present 60 days to 30 days. Do you have any 
other suggestion? 

Mr. Ellsworth. Yes, sir, in the present Immigration and Nation- 
ality Act there is a statement that the H-2 can be admitted if 
there are no other workers available in this country, and as I wrote 
in my statement, unemployed workers may be available in Texas, 
but not interested in going to Maine to pick apples in the fall. 

We would like to see a change made in the act so it would be 
similar to that for the admission of permanent aliens. So that in 
the case of temporary workers, the act would say: "if there are no 
workers available at the time and place where needed." 

Then second, we think that in place of the present regulations, 
where the Labor Department requires each and every grower to 
request the necessary number of H-2 workers to fill out a domestic 
labor shortfall, we would be ahead of the game if an association of 
workers could request a specified number, and that perhaps that 
association could get by requesting fewer because they could be 
shifted from employer to employer within that association, where 
they could have full-time employment under such a system, there 
would probably be fewer H-2 workers needed. 

I think those are the big suggestions we would like to make, sir. 

Representative Fish. Thank you very much. 

Mr. Neville, in view of your understanding now of the Commis- 
sion's proposal to truly protect the employer, to give him a basis on 
which to make a judgment if an employee is indeed eligible to 
work, what is your position on graduated penalty provisions under 
the employer sanction, culminating perhaps in criminal sanctions 
against employers who repeatedly violate the employer responsibil- 
ity system? 

Mr. Neville. We wouldn't oppose that, Congressman. We 
wouldn't oppose such a system, as long as the ability to verify is 
there and he has a choice. We would never say that you can't 
increase the penalties for someone who persists in violating what is 
a perfectly clear law. 

Representative Fish. Mr. Wright? 

Mr. Wright. Congressman Fish, if an employer can be shown to 
have knowingly breached the requirement of having a card and 
requiring identification, and if of course there are the kinds of 
appeal requirements, make the punishment fit the crime. And I 
think that that kind of employer is a very rare one, but that he 
should be dealt with accordingly if he has violated the law. 

Representative Fish. Thank you, Mr. Chairman. 

Senator Simpson. Thank you. I would now recognize Congress- 
woman Schroeder. 

Representative Schroeder. I want to thank you all very much 
for being here and I do appreciate your statements. Of course I am 
especially partial to Mr. Wright. I hope the others do not mind. 

I just wanted to say, what do you mean by easily verifiable? We 
are all tapdancing around that. Would it be something like a credit 



82 

card where you phone in and doublecheck? Would you do that type 
of thing? Anybody can respond to that. What is it that we envision, 
because even the Commission didn't really get into what we should 
do. 

Mr. Ellsworth. Visualize, if you will, an agricultural employer 
who uses day-haul workers. These are workers that may be 
brought by a day-haul operator from, let us say, Philadelphia to a 
farm in New Jersey, and they come, 30 or 40 of them at a time, to 
go to work on that farm. There may never be the same 30 or 40 
any other day, but there is a need for 40 of them every day. 

To get those names through a long-distance telephone line for 
confirmation of some sort causes some doubts in our minds, and if 
you have a situation where the foreman hires these workers in the 
field where there is no phone, pays them in the field at the end of 
the day and may not see those workers the next day, then he has 
to have some document, it seems to me, Mrs. Schroeder, that will 
be usable under such circumstances. It is just like the card I carry, 
retired from the Army, and it is a good card and it will do what- 
ever it is required to do. 

Representative Schroeder. I guess, Mr. Ellsworth, the thing that 
worries me about that as having seen "60 Minutes" and all that 
showing how easy it is to phonyup the card type of documentation 
and how people can go purchase those and there just may not be a 
way around it, I would think with the dayworker that you're 
talking about, isn't that fairly easy to remedy because wouldn't you 
be doing it through a subcontractor? Wouldn't the subcontractor be 
the one that you would be holding accountable? 

Mr. Ellsworth. Well, it depends on how you wish to make the 
responsibility. Yes; it could be. 

Representative Schroeder. I think that is the hardest thing that 
we have to deal with here. How you do it and how you do it so it 
works rather than you can run out and buy a card or phony it up 
because then you just have made it more cumbersome and the 
loophole is still there and the people who want to evade it still 
evade it. So I guess I think that is the biggest challenge. 

Mr. Ellsworth. If we could have some system whereby at some 
time during that day, not necessarily at the time that worker was 
hired, a subsequent phone call could be made, it might work. 

Representative Schroeder. What if you didn't have to pay them 
if you made the phone call and found out that they weren't there? 

Mr. Ellsworth. I beg your pardon. 

Representative Schroeder. If during the day you put the person 
on and you don't have to pay them if you find out that they don't 
have the right number? 

Mr. Ellsworth. I am afraid we would have the entire Wage and 
Hour Division of the Department of Labor down the next morning. 

Representative Schroeder. But if you had that as the law. I 
don't know. I am only trying to figure out what it is 

Mr. Ellsworth. I think they ought to be paid for the work they 
did but no more. 

Representative Schroeder. And that's the end. You can't have 
them come another day. OK. 

Representative Mazzoll Would the gentlelady yield just for a 
second? Is it possible that something could be drafted where the 



83 

cards would be picked up at the beginning of the day, the foreman 
would have the opportunity to control those cards for the remain- 
der of the work day, but as these individuals leave, and I assume 
they are paid on a daily basis in cash or something, the card must 
be returned at the end of the day, along with the cash payment? 
Then the individual, the foreman, or the business manager, would 
have the use of those cards; if they wanted to check, fine; if they 
didn't, it's up to them. I would assume that they would want to for 
purposes of protection against any INS bust. 

Is that possible? Has that ever been thought of or is it just more 
paperwork and more problems? 

Mr. Ellsworth. It is possible, sir. I don't know what the addi- 
tional burden would be. 
Representative Mazzoll Thank you. Thank you, Pat. 
Representative Schroeder. Thank you. I have no further ques- 
tions, Mr. Chairman. Thank you. 
Senator Simpson. Thank you, Congresswoman Schroeder. 
Now as we are alternating parties here, I now recognize Con- 
gressman Dan Lungren of California. 
Representative Lungren. Thank you, Mr. Chairman. 
I would just like to follow up on what Congresswoman Schroeder 
talked about. I think we ought to be very clear what we are talking 
about. I am not talking against employer sanctions under proper 
circumstances, but I don't think it is quite as easy as some of us 
may have suggested around this table today. 

Having a counterfeit-proof card such as the one that the INS 
developed, which then we in Congress didn't give them enough 
money to follow through on, has one of those metal bands on the 
back that can be read, but in order to be effective you have to run 
it through a machine. So if you're at the border station and you 
have it you can run it through the machine and get a go or no-go 
as far as the reading is concerned. But I don't think we're going to 
suggest that every employer ought to buy one of those, but I do 
think we have to recognize that it's going to take more than just 
looking at that piece of paper because that does you no more good 
than having a social security card. Drivers licenses, you can buy 
them for slightly more than a social security card in California or 
just about anywhere. If you're high school age, and you're just 
below drinking age you know where to find it, and you can put 
your picture right on it and it looks very good. 

So I think we have to really deal with what is going to be 
effective, and I think that all the more requires us to be very 
persistent in trying to find something that we can get agreement 
on. I think it would be pretty bad if we thought we had the 
agreement of industry and then all of a sudden we produce a card 
that really does nothing except impose a tremendous burden on 
industry and find out that you are fighting us on it. 

I would like to talk about a subject that is usually pretty deli- 
cate, but I see in Mr. Ellsworth's statement there is some acknowl- 
edgement of the fact, and I would like to address it both to Mr. 
Ellsworth and to Mr. Neville and if Mr. Wright would like to 
comment, I would appreciate that. 

On the question of the number of people who are here on 
undocumented status working in the agricultural industry and the 



84 

restaurant industry. I am not a social scientist who has gone 
around taking measurements, but I have walked into restaurants 
and I have been in agricultural areas and I note that there is a 
large number. Mr. Ellsworth, you say it is less than 50 percent, but 
anything up to and including 49 percent is a rather large number. 

If that be a fact, I would like to know what you feel the impact 
on your industries would be if we enacted the proposals of employ- 
er sanction, legalization and cutting off any type of guest-worker 
program except for a slightly streamlined H-2 worker program? 

Mr. Ellsworth. May I ask you a question, not to sidestep it, but 
would your H-2 program be responsive to the demonstrated needs 
of employers with some checking, let us say, by the Labor Depart- 
ment or some other body? 

Representative Lungren. Well, as I understand the recommen- 
dation of the Commission, it is for a slight increase in the H-2 
program in terms of numbers, so there might be some streamlining 
but in terms of numbers it would only be a slight increase, and 
according to what you said about those who would then become 
legal, you would tend to think they would move out of the industry 
into other industries. 

So what would we do with the shortfall of labor? Is it your 
feeling that that would be supplied by indigenous labor, by people 
who are here legally? 

Mr. Ellsworth. We have instances at the present time in this 
country, sir, where we cannot find U.S. citizens who will fill the job 
orders, even when they are placed through the employment serv- 
ice. I may be proven wrong because I am dealing with an unknown, 
just as everybody else is in terms of the number 

Representative Lungren. It's call informed speculation, I think. 

Mr. Ellsworth. If I were an undocumented farmworker and I 
suddenly had amnesty and were given a good card where I could go 
someplace and get year-round employment without having to do 
farmwork, I would be inclined to go, I think, and therefore it is my 
association's view, the members who have been discussing this very 
carefully, that there will be a rather large falloff in the number of 
farmworkers available to harvest crops in this country. 

Representative Lungren. You see, I have no problem at all with 
unavailability of employees to those employers who have been 
unscrupulous, those who have taken advantage of the situation and 
paid people below minimum wage, put them in sweatshops. As far 
as I am concerned, we ought to throw the book at them. 

But I am concerned about a conscientious employer who has felt 
that over the years he has not been able to get labor in his area 
except for those who are undocumented, and knowing that has 
hired them or not made an effort to determine if they are undocu- 
mented, and firmly believes that he is reliant on them. I just think 
that is one of the hard questions we are going to have to address 
here. And I recognize that there are groups here that oppose that 
because they think they're taking jobs away from Americans, and 
if that could be proven I would oppose it, too. The fact of the 
matter is, I think we have a large number of undocumented aliens. 

Would you like to comment on that with respect to the restau- 
rant industry? 



I 



85 

Mr. Neville. Yes; I can't tell you how many undocumented 
aliens work in our industry. I don't know of any. But my experi- 
ence tells me, when I go to restaurants myself, that there must be 
some. 

Representative Lungren. Let me just tell you a story on that. A 
number of years ago the Commissioner of INS, General Chapman, 
went on a tour down in Texas and went to a Ramada Inn for 
dinner and they had a big welcome on the big signboard outside, 
"Welcome General Chapman, Commissioner of INS." He went to 
have dinner that day and the owner and the wife of the establish- 
ment came out and apologized for the fact that the service was 
slow but they were the only employees there that day. 

The General supposedly turned to those employees of the Border 
Patrol who had invited him and said, "I appreciate the publicity 
but next time I'd like to have a meal so don't publicize the fact 
that I'm here." [Laughter.] 

I just think we ought to recognize that. We just danced around that 
issue for such a long period of time, and pretended it didn't exist. I 
think we have to deal with it somehow. 

Mr. Neville. We have, as you know, a great number of entry 
level jobs in our industry. And they are jobs that many times are 
difficult to fill. These people will fill them and fill them well. But I 
don't know the answer to your question, Congressman. I can't tell 
you how many there are. I know that there are employers who hire 
them but they don't hire them at any reduced rate or anything of 
that kind because these are all honest employers who keep records 
and pay the same wages and carry them through the same career 
ladder steps as everyone else. There is no law against their being 
employed at the present time except in some States, as you know. 
There are a few States that have adopted that. 

Senator Simpson. Thank you. Congressman McCollum, please. 

Representative McCollum. Thank you, Mr. Chairman. 

I have a question for Mr. Ellsworth based on what I found 
intriguing in your testimony that you submitted to us. I don't think 
you have really covered it in your testimony up to this point. 

On page 12 you comment, near the bottom of the page, this is 
about the H-2 program: 

The moment employers made their first move toward dropping their illegal work 
force in favor of using H-2 workers, the Department of Labor lowered the boom on 
them, making the process almost impossible for those growers. At times it even 
resulted in lawsuits. 

What are you referring to? 

Mr. Ellsworth. To be absolutely specific about it, there was an 
outfit in the Southwest that was engaged in citrus harvest, and 
they had had trouble getting workers to begin with. Second, they 
had had trouble keeping those workers because they would work 
for 2 or 3 days and then leave and the crop was not harvested. 

So the following year the growers got together and said, "We will 
try to get H-2 workers to fill this gap because over the years we 
have never been able to get workers that will, No. 1, come in 
sufficient quantity, and No. 2, stay." 



86 

Whereupon, the Labor Department moved in, following its regu- 
lations, and really just made it impossible for those growers to get 
any H-2 workers. As a result, the crop was pretty well lost. 

Representative McCollum. Has that been repeated other places 
or is this just one example? 

Mr. Ellsworth. Yes, sir, there have been other examples. I can't 
give you names of individuals or an individual grower, but the 
same thing was tried in western Colorado for apple harvest, and 
there were some cherry growers that tried it in Utah, and in each 
case they found that as individuals the rules and regulations im- 
posed on them were so great that they couldn't surmount them. 

Representative McCollum. You have given what I think, in the 
testimony you have presented to us today, a very convincing pres- 
entation and argument with regard to the difficulties that actually 
exist for use of H-2 workers. The opposite is actually true as far as 
incentives or disincentives and what may be indicated in the Select 
Commission's report. 

I am curious about what is missing from this, and that is what 
recommendations or suggestions you might have for us to improve 
the H-2 program. I assume maybe you would do away with all 
these things that you complain of in here as making it more 
difficult, but I am sure that actually there must be some one or 
two or three items that you would particularly think are burden- 
some on your industry and that might be of importance to other 
industries besides agriculture to change in the H-2 program. Could 
you tell us your thoughts on that? 

Mr. Ellsworth. Well, the one thing that I had mentioned in my 
statement was that at the present time the Labor Department 
requires a job order to be filed with the employment service and 
that the employment service have that job in its interstate clear- 
ance system for 60 days. We think that is an inordinate period of 
time when the employment service now has its computer set-ups 
and its job banks where it can find workers more quickly. 

Second, we feel that the requirement that the Secretary of Labor 
has to certify that there are no workers available in the United 
States is a tremendous burden to overcome. Where an employment 
office in Texas will call the employment office in Virginia and say, 
"Yes, we have 12 workers down here that are unemployed," and 
say they might be available and then the Virginia employer has to 
contact them only to find out that they are really not interested in 
coming up to pick apples when the weather turns cold, becomes a 
bit of an exercise in futility. 

Then, the other one is that over a period of time, job orders have 
become so voluminous with all of the requirements, all of the 
details, all of the this and all of the that, we say look, if you can 
hire U.S. workers under these circumstances, but there are no U.S. 
workers to be hired, then gentlemen, let us hire temporary foreign 
workers to come in, do the job, finish the job and go back home. 
We'll pay them the same price we would pay U.S. workers, not a 
penny less, and have them save our crops. For many of the grow- 
ers, citrus and sugar cane and other crops, a whole year's invest- 
ment is involved in getting that one crop out. 



87 

Representative McCollum. Well, I am very familiar with that, 
being from Florida. We see the sugar cane and the citrus and 
everything in my district. 

I would like to follow up on the lines of suggestion you might be 
able to give us. You know, we have had some problems in the 
Immigration and Naturalization Service inspections of businesses, 
and this would apply to the whole panel really, because it is 
considered to be disruptive and there are lawsuits, as I understand, 
out in California where we visited recently. They can't go in, in 
many cases, because of these suits in many cases. 

Can you suggest how we can improve on that and perhaps draft 
a law that would be more palatable and allow some of these inspec- 
tions that have to take place in the future to take place? I would 
like to ask that of the whole panel, if we have the time to answer 
it. 

Mr. Ellsw^orth. In the interest of time I would like to pass and 
suggest that I answer that question for you in writing after we give 
it some more thought. 

Representative McCollum. Fine. I would appreciate it. 

[The following response was subsequently submitted by Mr. Ells- 
worth:] 

At the present time the laws of this land result in an anomaly, Employers (with 
the exception of farm labor contractors) are not prohibited from hiring undocument- 
ed aliens. On the other hand, the Immigration and Naturalization Service is 
charged with seeking out and deporting persons who have entered this country 
illegally. 

As a result, there have been frequent "raids" by the Border Patrol which have 
proven highly disruptive, especially at the height of agricultural harvest operations. 
One cannot fault the Border Patrol for carrying out its duty, even though the modus 
operandi during such raids may prove highly disruptive. 

Were the Congress to enact employer sanctions, the great majority of agricultural 
employers would abide by the law. Under such circumstances, the Border Patrol 
could, through cooperation with employers, check time cards or other records and 
"weed out" the worker with a forged document. 

In its written statement, NCAE expressed serious concerns over a "shortfall" of 
U.S. workers and emphasized the need for a responsive temporary (H-2) worker 
program. Were employer sanctions in place, any H-2 workers admitted would be 
known to the Immigration and Naturalization Service which would have issued the 
needed temporary visas. Any Border Patrol activity could then be directed, not 
against a whole work force, but against those illegal workers discovered by periodic 
checks of employer's records. 

This is merely a suggested solution— a possible abatement of the problem. While 
NCAE has no position for or against employer sanctions, as long as the laws of the 
land remain as they are, the "conflict" between employers and the Border Patrol 
will continue. 

Mr. Wright. Mr. McCollum, I have no knowledge of the agricul- 
tural business, but I think that employers with whom I am famil- 
iar have been operating under different kind of regulations and 
restrictions for a long period of time, starting out in about 1938 
with the Fair Labor Standards Act and various equal employment 
statutes and wage and hour statutes that have been passed since 
then. 

There is a high degree of sophistication in some of these agen- 
cies. The Wage and Hour Division, for example, started in 1938 and 
has achieved a good deal of maturity. 

For those employers covered by the Federal Fair Labor Stand- 
ards Act, perhaps it is an organization who could administer or 
enforce this kind of a provision. I would hope we could avoid any 



88 

great new organization or establishment and that it could be added 
to what we already have. 

Representative McCollum. I know my time has expired but I 
would appreciate it and I think the whole panel would if each of 
you would submit to us in writing some constructive suggestions 
about how it might be improved. Right now the burden is really on 
the Immigration and Naturalization Service as a law enforcement 
agency, as I understand it, although obviously Labor gets in it and 
you're right, it's confusing and I think it is a great burden, but we 
have to do it and I think all of us would probably agree that we 
have to reshape that law. 

I know my time has expired. 

Senator Simpson. That was a very important question and I was 
going to allow the time to go on so that you might respond, Mr. 
Neville, but if you are going to do that in writing, I think that is 
most appropriate. 

That is what we are up to. We are just going to be culling the 
United States of America for suggestions. It is just like the issue of 
the three-legged stool which is employer sanctions, increased en- 
forcement and some kind of identification system. If we get one 
without the other two or if we get two without the other one, we 
have nothing. Yet we will pretend we will and then we will be 
right back where we were before. It is a tough, tough issue and we 
realize it, but we are ready to plow ahead and all the political 
ramification of it that are so very, very real, and we will be 
searching throughout this country. 

I always say to people as they say you can't do that, I say OK, 
give me what we can do but no fair quoting what it says on the 
Statue of Liberty. Then they get mad because it is easy to fly into 
it from that launchpad. 

Enough. Thank you very much. We appreciate your coming here 
and I hope you will continue to communicate with the staff of 
Congressman Mazzoli and my staff and continue to feed us infor- 
mation that is so important. 

Representative Mazzoli. Thank you very much, gentlemen. 

Senator Simpson. The final witness in today's hearing will be Mr. 
Thomas Donahue, secretary-treasurer of the AFL-CIO. Mr. Dona- 
hue, please proceed, and thank you for your patience. We appreci- 
ate having you and I am going to give you 10 minutes instead of 8. 

STATEMENT OF THOMAS DONAHUE, SECRETARY-TREASURER, 
AFL-CIO, ACCOMPANIED BY RAY DENISON. DIRECTOR, DE- 
PARTMENT OF LEGISLATION, AND MARKLEY ROBERTS, 
ECONOMIST 

Mr. Donahue. Senator and gentlemen, I am Thomas R. Dona- 
hue, secretary-treasurer of the AFL-CIO and I am accompanied by 
Ray Denison on my left, the director of our department of legisla- 
tion, and on my right by Mark Roberts of our economics staff 

I appreciate the opportunity to appear and present the views of 
the AFL-CIO, which has a long interest and a proud and consistent 
record on both refugee and general immigration matters, and has 
long expressed its concerns in both areas. 

We have always heralded America as the land of immigrants 
and surely our labor movement is a movement begun by immi- 



I 



89 

grants and peopled today by the children and grandchildren of 
those immigrants. 

We have argued for sensible and fair immigration policies, and 
at the same time we have for well over 20 years expressed our 
serious concerns about the adverse effects of bracero programs and 
of illegal immigration on U.S. workers and their jobs. 

Similarly, we have always staunchly insisted that America must 
remain a Nation of refuge for those who flee persecution. We were 
in the forefront of those who joined in the late 1930's to assist the 
victims of the Nazis and we worked hard to assist in the resettle- 
ment of the refugees of Eastern Europe after World War II, and in 
more recent years we have expended similar efforts to assist the 
Hungarians and other East Europeans, Cubans, Haitians, Indo- 
Chinese, the Somalis, and the many others who have been forced 
into the refugee world. 

At the same time, we have pressed through our trade union 
channels and have supported various administration efforts to 
press other nations to accept a more fair share of the burden of 
refugee resettlement. 

Against that background we are pleased to have the opportunity 
to appear here today and to urge your consideration and your 
prompt disposition of the issues raised in the final report and 
recommendations of the Select Commission on Immigration and 
Refugee Policy. 

As an Assistant Secretary of Labor for Labor-Management Rela- 
tions in the Johnson administration, I was involved in efforts in 
1967 and 1968 to deal with the problems of illegal immigration. 
Fourteen years later we are still wrestling with the same problems, 
and the problems have grown immensely more serious in those 
intervening years. 

We have all been involved in an analysis of the illegal alien issue 
for many, many years, and in an analysis of refugee and immigra- 
tion matters for at least the past few years, and it is past time for 
the Congress to act. 

We support a humane and compassionate U.S. immigration 
policy, while taking a realistic view of job opportunities and of the 
needs of U.S. workers. Illegal immigration is of particular concern 
to us because it endangers the jobs and the labor standards of U.S. 
workers. 

In analyzing the report of the Select Commission, we find our- 
selves in agreement on most matters, and specifically we support 
the committee's recommendations for penalties for employers who 
hire illegal aliens in the form of civil and criminal sanctions, an 
identification system for work purposes, stronger border controls 
and interior enforcement, and much more support for the Immigra- 
tion and Naturalization Service, better enforcement of labor stand- 
ards and antidiscrimination laws generally and specifically the 
enforcement of those laws in areas and in industries where signifi- 
cant numbers of illegal aliens are employed, with speedy prosecu- 
tion and stiff fines against repeated violators. 

We support the Commission's recommendation for ending the 
dependence of this Nation on temporary workers, opposing foreign 
labor import programs which undercut U.S. wages and working 



83-514 0-81-7 



90 

conditions, and requiring employers to pay social security and un- 
employment insurance for H-2 workers. 

We support continuing and improving enforcement of the labor 
certification process to protect U.S. workers, and we would specifi- 
cally support many of the changes recommended by former Secre- 
tary Marshall in his addition to the Commission's report. 

We commend specifically the recommendations of the Commis- 
sion for regularizing the status of illegal aliens with demonstrated 
attachment to the community, with compassion for the families 
involved, after the massive inflow of illegal aliens has been 
stopped. 

We believe that U.S. immigration policy should foster the reuni- 
fication of families and we support the continued acceptance of 
refugees from political persecution, and we urge increased efforts 
to share responsibilities for those refugees with other nations. 

We support with some qualifications economic development in 
nations sending illegal aliens to the United States, but we note, 
along with the authors of the report, that that development is not 
a shortrun solution to our problems. 

Finally, we believe that the Commission recommendation to in- 
crease legal immigration by 65 percent is premature and unwise in 
the current economic conditions, in light of our need to absorb the 
full effects of at least a decade of large scale legal and illegal 
immigration. 

That would conclude, Mr. Chairman, our oral presentation. I 
would be happy to discuss any pf those matters further and I would 
be happy to try to answer any of your questions. 

Senator Simpson. Thank you very much. That was very helpful. 

Your organization, Mr. Donahue, has come out in opposition to 
any proposals for any expansion of the current H-2 program, and I 
remember working in a most vigorous way with Jack Otero, who 
was on the Select Commission and had some strong feelings in that 
area. And yet you endorse the Commission's proposal for employer 
sanctions. 

Historically, I guess, we have learned that it is just impossible to 
gain control over illegal immigration without the cooperation of 
employers. It just isn't going to work, and that is the way it is. 

And the various employer groups, and you heard some of that 
today, have stated they will go along with sanctions, provided they 
will have access — part of it being access to a temporary worker 
program to fill labor needs which were not met by American 
workers. 

In the view of your organization, would not a controlled expan- 
sion of the H-2 program represent much less of a threat to your 
membership than a continued uncontrolled influx of illegal work- 
ers who have proven difficult to become involved in any formal 
labor process or labor organization movement. 

Mr. Donahue. I'm afraid. Senator, you offer me a Hobson's 
choice, expanding H-2 or maintaining illegal immigration. I sug- 
gest that I don't think we have to do either of those things. The H- 
2 program, while we would surely be critical of pieces of it, has 
worked reasonably well for all sides. There were 36,000 people 
admitted to this country this year. That, apparently, was the 



91 

number for which there was a demonstated need. It is my under- 
standing that about half of those were in the agricultural field. 

I have heard a number of comments about sugar cane cutters 
and so forth. Those are all H-2 workers who have been admitted 
year after year to cut cane in Florida and Louisiana. 

We are in a situation in which there are 7,800,000 American 
workers unemployed, with the high unemployment figures you 
have heard testimony of among our young workers. Those are 
people who take low paid and unskilled jobs. We think that first we 
ought to try to see if there can't be a shift of those unemployed 
into gainful employment before we talk about expanding the H-2 
program or going into any sort of enlarged bracero programs. 

Senator Simpson. You say enlarged bracero program. Now I 
came from an area of the Nation where the bracero program was 
used and the very term is offensive to the Hispanic people, the 
term "bracero." That is why we use terms like guest workers and 
temporary workers and so on. 

You don't have any wish to return to the former aspects of the 
old bracero program, do you? 

Mr. Donahue. None whatsoever, Senator. We have worked very 
hard for all the years leading up to 1962 to insure the repeal of 
Public Law 78, to insure that that program could come to an end. 

Senator Simpson. I think that is shared by many. We don't want 
to return to that. 

If the United States is faced with having to enforce an overall 
cap on legal immigration, what would be your organization's posi- 
tion on how those numbers might be distributed among categories 
of family reunification or needed labor skills or refugees? What is 
your thought there? 

Mr. Donahue. Senator, we have supported the basic thrust of 
family reunification as the first priority, and I suppose that puts us 
in general accord with a system of preferences. The AFL-CIO has 
not specifically addressed the question of independent immigration 
beyond those preferences, or an absolute numerical cap. 

On the refugee side of the equation, I think we have to accept 
the unfortunate fact that there is likely to be a continuing need for 
this Nation and others to absorb refugees from persecution or 
tyranny somewhere in the world, and they will add another ele- 
ment to the inflow of legal immigrants to this country. 

I think the current legal immigration level of 270,000, plus the 
acceptable inflow of refugees as necessary to this country, would 
provide probably a tolerable limit for immigration. We have not 
addressed specifically whether or not you should establish an abso- 
lute cap on those two numbers and refuse persons above that. 

Senator Simpson. Could you elaborate on your organization's 
position on the Commission recommendations on employer sanc- 
tions based upon this secure form of identification? What system of 
identification would be more acceptable to American workers in 
your opinion? And I am not laying that as a snare. I am really 
wondering what your organization would see because you have 
favored an ID system. What would that be? 

Mr. Donahue. Beginning some years ago, Senator, we argued 
very strongly for the acceptance of a noncounterfeitable social 
security card, since that was advanced in the mid-1970's, I guess, as 



92 

the standard identifier which could be most easily accomplished 
and could be put into place most quickly. 

We really think there are only two elements that would have to 
govern use of any sort of standard identifier, and we addressed 
those issues in our testimony, as saying there is a requirement that 
nobody entitled under the law be denied such a document, and that 
once a document is issued, it cannot be revoked if it had been 
issued according to law in the first place. 

In terms of which of the various technologies we think most 
acceptable, I would think that either the noncounterfeitable social 
security number or some sort of data bank system, as Secretary 
Marshall has suggested, would be an acceptable way of providing 
an employer with a certain amount of security that the person he 
is hiring is entitled to be in this country and be employed, and 
would provide a workable system. Beyond that, we really don't 
have any specific choice as to the type of technology. 

Senator Simpson. Chairman Mazzoli. 

Representative Mazzoli. Thank you, Mr. Chairman. 

Thank you very much, Mr. Donahue. Let me commend you on 
your statement. I think having that executive summary attached to 
the statement itself enables people like me, with about a 13-second 
attention span, to be able to get something out of what you said. I 
really thank you for it. 

We have heard some very interesting word combinations. My 
friend from Wyoming is noted as one of the more quotable people 
on the Hill. We have had "guesstimates," and I go back to my 
favorite, "xenophobic demagoguery," "heroic estimates." Let's 
maybe stick with heroic estimates. 

I wonder if the AFL-CIO has done any heroic estimate, which I 
gather is a euphemism for any kind of numbers we can summon 
up, of the impact of illegal aliens on unemployment rates. We hear 
this swarm of illegals is all over the place, denying Americans jobs 
and forcing Americans onto the streets. 

Has the AFL done any heroic estimate, and if not, can they be 
done and could you supply us with the next best appraisal? 

Mr. Donahue. Mr. Mazzoli, we have generally been fearless and 
willing to wade in with all sorts of estimates. We don't in fact have 
an estimate that I could offer you, beyond our general acceptance 
of the Commission's estimate of 3.5 to 6 million, and if anything we 
would tend to think they are on the side of caution and that other 
reasonable estimates of the number are higher. 

In terms of displacement, I would argue to you that there is an 
absolute substitution, one for one, that in this Nation, before we 
had illegal aliens and before we had any substantial number of 
braceros in the 1950's, the dishes were washed and the beds were 
made and the crops were picked. The crops were picked to a much 
greater extent manually than they are today. And they were 
picked by American workers. 

With the kind of unemployment statistics that we have, I would 
argue to you that there is a substitution of one for one and that if 
we didn't have 2 or 3 or 4 million illegal workers in this country, 
then we would reduce our unemployment statistics by that 
number. 



93 

Representative Mazzoli. The gentleman at the end of the table 
and I took a very interesting trip to California 2 weeks ago, which 
brought us all the way from the border at San Ysidro up to Los 
Angeles. In the course of at least two different conversations I had 
people who I think were reputable and believable people saying 
that it is impossible to find an American who will take a job as a 
domestic. It is impossible for several reasons, not the least of which 
is class distinctions. It is demeaning to take a job as a domestic, 
and an American doesn't want to demean himself or herself. 

Yet do you feel then, sir, that there is a one for one displace- 
ment, and that a domestic who comes from Haiti and Santo Domin- 
go is indeed displacing an American at that job? 

Mr. Donahue. Yes. 

Representative Mazzoli. You really do? 

Mr. Donahue. Yes; I do. 

Representative Mazzoli. That is interesting. More heroic esti- 
mates or is there anything to back that up? 

Mr. Donahue. With one qualification, which I should have of- 
fered, and that is that the rate paid for the job is sufficient to draw 
forth labor. I mean what we are hearing more and more in this 
country is the need to allow the free play of market forces. Market 
forces will provide workers when the reward is high enough. 

Representative Mazzoli. Well do you think, for instance, if you 
were to pay $7 an hour for an 8-hour day, that there would be no 
problem in getting domestic help in Washington, D.C., right now? 
That is a speculative question, but it was intriguing when I talked 
to these two different people, two different cities in California, two 
different backgrounds, and they both said the same thing. We 
were, of course, faced with this question of just what happens. Do 
the illegals really take our jobs, or are they doing things that 
Americans either cannot do, for lack of skill, which is highly un- 
likely, or don't want to do, either because it is stoop labor, or is, 
historically, the kind of work that blacks did and they don't want 
to do anymore because it is not an upwardly mobile job? 

I was intrigued by this sort of discussion. Anything that you have 
downtown on that I would be interested to have because I think 
that is a very big point in talking about H-2 programs. I think the 
Congress has to be convinced that, indeed, H-2 workers and illegals 
are displacing Americans. Otherwise there is the answer that if 
you go to sanctions, you may cause a lot of headaches within an 
industry or several industries. 

Mr. Donahue. I can only offer you the comment that at $280 a 
week in a city in which the prevailing wage is paid in many 
occupations, I would have to believe that you could get all the 
domestics you want in Washington, D.C., at $280 a week, $7 an 
hour, 8 hours a day. 

I come from New York City. I come out of what used to be 
referred to as the Elevator Operators and Porters Union in New 
York City. The porter's job is a particularly unattractive one. It is 
dirty. It is very low prestige and it is a job where traditionally the 
latest immigration wave has gone into that employment. 

In those jobs, in New York City, the janitorial force is organized 
about 95 percent and the jobs pay about a minimum of $270 a 
week. There is no shortage of people who are willing to take those 



94 

demeaning occupations and fill those demeaning jobs. No shortage 
whatsoever. There are people lining up every day. 

Representative Mazzoli. I am not so sure that janitorial work is 
quite like domestic work and stoop labor. I shouldn't use that term 
"stoop labor," but hard, bend-over kind of work in the fields where 
you have the Sun above and you have the problems that entails. 

Just for a very quick example, before my own time expires, 
before my father's death — he was himself an immigrant — he was a 
tilesetter and did terrazo, which we have throughout the Capitol. 
Toward the end of his experience he had a terrible time trying to 
find Americans who are willing to kneel down in what Daddy used 
to call mud, which is just the concrete and the terrazo chips, 
because it is tough work, as I well know myself. It is hard work, 
and it produced backaches and arthritis and everything else. He 
just couldn't find Americans to do it toward the end. And it 
became, as we all know now, virtually a dying craft. 

Anyway, I just suggest that we might want to try to follow up on 
that. 

Mr. Chairman, thank you for the time. 

Senator Simpson. Congressman Lungren. 

Representative Lungren. Thank you, Mr. Chairman. 

Mr. Donahue, I appreciate your appearing before our combined 
panels here. I think it is commendable that the AFL-CIO has this 
interest. We have been trying to raise the flag on this issue for 
some time and now we are finally doing it. Sometimes I wonder if I 
wanted to raise the flag because of some of the flak I get on this. 

I am happy to say I agree with a majority of the points here, but 
obviously we have a little bit of a disagreement on the question of 
temporary workers. And let me just pose this question to you. 

You said that the H-2 program had what was it, 36,000? 

Mr. Donahue. That is my understanding, 36,000 people last year. 

Representative Lungren. But isn't it true that that is in the 
context of having a large number of undocumented workers who 
are working in the job force today? 

Mr. Donahue. I assume that is the case. 

Representative Lungren. We're talking numbers here and we 
are all talking about going from 250,000 or 275,000 to 350,000. The 
fact of the matter is legally last year we had admitted to this 
country 788,000 people, when you go through all the preferences, 
when you go through the immediate relatives, when you go 
through the refugees, when you go through the people that are 
entrants here pending status; 788,000 people. We apprehended 
somewhere between 800,000 and 1 million people last year, and if 
you go on the border the frank statement you will get is that for 
every one apprehension they make, two to three get across. Official 
is one, but two to three and some say four. So you're talking about 
a large number or people. Now obviously it may be the same 
person in some instances. 

So you are talking about literally millions of people in that 
system, and my question is what can you tell us, what can you 
show us in terms of real hard facts to suggest that every one of 
those millions out there or several millions out there taking a job 
is taking a job from an American worker who is willing and 
available to do that job? Because otherwise we just have here a 



95 

clash of opinions and we are never going to get anyplace. Some 
people say they don't take jobs and other people say they do take 
jobs, and nobody has any hard data. And maybe we can't get that 
hard data. 

But is there anything, any research that you have at the AFL- 
CIO that could give us a glimmer of light on this subject? 

Mr. Donahue. I don't think there is any research which could 
show you statistically or empirically that job opportunities which 
don't exist would be filled by people if they were there, and that is 
really what you are asking us for. 

I submit to you that our experience is that in the past all of 
these jobs were performed, before there were illegal aliens. The 
restaurants in Washington were fully staffed by people. The motel 
where General Chapman went was staffed by people years ago, I 
am sure. It functioned. The jobs were filled. 

So there is empirical evidence that prior to the arrival of illegal 
aliens, people were working in those occupations. I submit that 
that would continue to be the case in the future. 

I don't think that you can go from that question of whether or 
not there is substitution to say that there isn't. I mean you are 
coming to the opposite conclusion that there is not substitution and 
therefore, before we do anything about the illegal alien problem, 
we ought to bring in more people under an H-2 program, or 
provide for their entry under an H-2 or some other program. 

Representative Lungren. No, I didn't say before we did. I said 
concurrently. At least that is my idea. 

Mr. Donahue. Well, I think if you were willing to act on this 
legislation and monitor the various industries that would be princi- 
pally affected by it over a 2- or 3-year period, then you would have 
evidence of one kind or another. And I submit to you that the 
damage to those industries would be far less than the damage that 
has been done to this Nation and to the workers of the Nation by 
allowing the illegal alien problem to go on this long. 

Representative Lungren. I will agree with you very, very much 
about the impact of allowing something that is sub rosa in terms of 
legality. It creates all sorts of inappropriate circumstances in our 
society, people victimized unscrupulous employers taking advan- 
tage of employees and competitors. 

But you know we sometimes fall into a semantic difficulty here. 
We say we didn't have these problems before we had the illegals. 
Frankly, we have had a labor movement from Mexico and it has 
been illegal or legal, depending on whether we had a law that they 
fell under, and there is no substantial evidence I have been able to 
find to suggest that the fact that we, for instance, quit the bracero 
program, stopped the same movement of labor we had with the 
bracero program. 

So I think you can make the argument that we had this move- 
ment of labor even in those times when we had very little unem- 
ployment. Some people would also argue that we have had in- 
creases in unemployment since we have created a social welfare 
network. I don't want to argue that point. I am just saying people 
could as easily suggest that. 

I think the point Mr. Mazzoli made was stretched a slight bit by 
suggesting that we wouldn't be able to find workers at $7 an hour. 



96 

I think maybe the question is paying them a minimum wage, 
which is the legally established minimum wage for someone for 8 
hours of work in a family, you would find available American 
workers. Paying above that I would suggest that most American 
families wouldn't be able to afford it. There are not very many 
American families that can afford somewhere between $900 and 
$1,000 a month to assist them, at the same time that you have both 
members of the family out there working. 

Mr. Donahue. But the extension of that is that since American 
families couldn't afford to hire domestics for more than the mini- 
mum wage, then we ought to legislate the fact that the minimum 
wage is the rate for domestic workers, and if there aren't domestics 
available at the minimum wage, then we should be allowed to 
import them. And that is not what the minimum wage is for. We 
have a free market which sets wages. 

Representative Lungren. If those jobs don't exist now, how are 
you taking jobs away from American workers if those jobs are 
gaged at a level at which foreign workers will fill them? If they 
don't exist in the American market, how are they taking jobs away 
from American workers, if you create a situation where foreign 
workers will provide them at say the minimum wage? 

Mr. Donahue. I don't know what jobs 

Representative Lungren. Domestic jobs. That is just the example 
that we came up with. That is the reason I am pursuing it. 

Mr. Donahue. But they do exist and they are being filled. I 
really would urge you not to get hung up on the need to provide 
cheap labor to American employers as a reason for stumbling over 
the need to close down illegal immigration. 

Representative Lungren. No, no, I agree with that and I am just 
suggesting that try as much as we can, we are not going to totally 
cut off the fiow, given the experience we have with Mexico, and 
rather than pretend we are, and rather than to say illegal workers 
will not seek work here, I think it would be better to allow some 
safety valve that we have some control over, and have the partici- 
pation of labor and management in the Government of this country 
and Mexico, to try to put some constraints on it. 

Senator Simpson. I certainly would I think speak for every 
member of both — I won't speak for them but my hunch is that we 
all feel that the issue has nothing to do with cheap labor or trying 
to provide it in America. This just isn't even part of our huge 
mission. It is something we will address from time to time, but it is 
something the Select Commission didn't even address, so help us by 
not diverting us into that emotional stream. That doesn't have 
anything to do with what we are up to. We are up to numbers, and 
what are we going to do and how are we going to do it, in a system 
out of control. 

Congressman McCollum, excuse me. 

Representative McCollum. Thank you. That is perfectly all 
right. Your comments were well made. 

I am interested in an area that I did not see covered in your 
testimony up to this point, as far as the AFL-CIO opinions are 
concerned. In the Select Commission report, there is no total cap 
on immigrants coming into this country. There is in fact a cap of 
sorts, but we have several exclusions, exceptions, whatever to that. 



J 



97 

and based on the projections that were presented to us today, there 
would be a substantial number of folks who could come in in 
unlimited quantities or numbers. The census figures, the GAO 
figures and everybody else's are just speculation and guesses or 
best guesses, so it could be quite a substantial number, especially 
over a long period of time. 

Does the AFL-CIO have an opinion or a view on whether or not 
we should have total cap, perhaps larger or perhaps different than 
the one that is suggested by the Select Commission, on the total 
number of immigrants, refugees, spouses, children, and so on ad- 
mitted to this country each year? 

Mr. Donahue. No, we do not. I think that if anything, we would 
argue that the Nation, in the operation of all those programs, 
would have to be conscious of the problems of Americans, Ameri- 
can jobs, and the problems of employment in this country as that 
might be affected by massive inflows of others from other coun- 
tries. But we have argued instead for maintaining some flexibility 
in the system, and we have argued that it is simply, in our judg- 
ment, probably not possible to work with an absolute cap in the 
face of the unknown refugee questions of the years ahead. 

We would not have anticipated the massive flow of Indochinese 
refugees a few years before that event. If you had a cap, we might 
not have been able to resettle as many of those people as we have 
been able to resettle. The same obviously would have been true 
with the Cubans and so forth. 

So we have argued rather for a more flexible approach to it, but 
we really haven't addressed the question of should there ever be a 
maximum cap. 

Representative McCollum. Thank you. I noted in looking at the 
testimony that was given earlier by Mr. Ellsworth, an agricultural 
employer, and also looking at the record of the Select Commission's 
recommendations and your support, one item stands out to me that 
needs to be addressed. That concerns H-2 employees and employers 
and the recommended requirement that employers pay social secu- 
rity and unemployment insurance for H-2 workers. You support 
that, according to the record. 

Mr. Donahue. Yes, sir. 

Representative McCollum. In Mr. Ellsworth's testimony, I don't 
recall his discussing it orally with us, but his written testimony 
says. 

Furthermore, it seems totally inconsistent with the intent of both the unemploy- 
ment insurance and social security programs to require payment into the funds on 
behalf of persons who will not be able to benefit from them. H-2 workers are 
temporary workers. They may never return to this country a second time. They are 
not citizens. 

In other words, they are not going to get anything out of it. It is 
never going to accrue to their benefit, which of course is the 
purpose of both of those programs. 

I don't know the reading, and we didn't ask that of the Select 
Commission as far as Father Hesburgh was concerned, but why do 
you support this particular requirement on employers in light of 
the comments that Mr. Ellsworth made with respect to the fact 
that they aren't going to get a benefit from this, the employees? 

Mr. Donahue. We support the imposition of those costs because 
the imposition of those costs would remove the disincentives to 



98 

employ American workers. It is perfectly true, as Mr. Ellsworth 
said, that in importing Jamaicans to cut cane in Florida, the em- 
ployer who brings in H-2 workers for that is paying some substan- 
tial transportation costs. That is not true of the Arizona employer 
or the southern California employer who has Mexicans just across 
the border coming to him. 

The difficulty I find with the gentleman's comments is that the 
entire theory of any insurance system is that everybody contributes 
to it in some fashion or other, and not everyone is going to collect 
from it. The reason you can have an unemployment insurance 
system in this country is that many people will never avail them- 
selves of it, never have need of the insurance that is offered, and 
therefore it can be offered at a certain rate. 

In buying automobile insurance, I think each one of us hopes 
that we are going to pay in for something we will never need. The 
theory of unemployment insurance is of a creation of a fund from 
which the needy will benefit as a matter of right, but it was never 
predicated on the assumption that everybody who paid into it 
would get some benefit out. 

Representative McCollum. I agree but it certainly was predicat- 
ed on the assumption that everybody who paid into it would be 
paying into it for a risk assumption, and they would receive some 
protection from it for the risk that they otherwise might have, and 
these employees have no protection. They have no risk. They are 
not protected. 

So what I gather from what you are saying is that this is strictly 
a deterrent, from your viewpoint, a way to help force people in this 
country not to hire H-2 employees. It is just another added restric- 
tion on them, is that correct? 

Mr. Donahue. I wouldn't accept the word "force," but it removes 
the disincentive to hire U.S. workers. 

Representative McCollum. I have no further questions. Thank 
you. 

[The prepared statement of Mr. Donahue follows:] 



99 



SUMMARY 
OF 
STATEMENT OF THOMAS R. DONAHUE, SECRETARY-TREASURER, 
AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, 
TO THE SENATE SUBCOMMITTEE ON IMMIGRATION AND REFUGEE 
POLICY AND THE HOUSE SUBCOMMITTEE ON IMMIGRATION AND REFUGEES AND 
INTERNATIONAL LAW IN JOINT HEARINGS ON THE REPORT OF THE 
SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY 

May 5, 1981 

The AFL-CIO supports a humane and compassionate U.S. immigration 
policy while taking a realistic view of job opportunities and needs 
of U.S. workers. Illegal immigration endangers jobs and labor 
standards of U.S. workers. The AFL-CIO supports: 

1. Penalties for employers who hire illegal aliens. 

2. An identification system for work purposes. 

3. Stronger border controls and interior enforcement, more support 
for the Immigration and Naturalization Service. 

4. Better enforcement of labor standards and anti-discrimination 
laws. 

5. Ending dependence on temporary workers, opposing foreign labor 
import programs which undercut U.S. wages and working conditions, re- 
quirino employers to pay Social Security and unemployment insurance 

for H-2 workers. 

6. Continuing and improving enforcement of the labor certi- 
fication process to protect U.S. workers. 

7- Regularizing the status of illegal aliens with demonstrated 
attachment to the community, with compassion for families inyolved. 

8. Immigration policy fostering reunification of families. 

9. Continued acceptance of refugees from political persecution 
and shared responsibilities for refugees with other nations. 

10. Economic development in nations sending illegal aliens to 
U.S.A. 



##« 



100 



STATEMENT BY THOMAS R. DONAHUE, SECRETARY -TREASURER, 
AMERIi^AN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, 
TO THE SENATE SUBCOMMITTEE ON IMMIGRATION AND REFUGEE 
POLICY AND THE HOUSE SUBCOMMITTEE ON IMMIGRATION AND REFUGEES AND 
INTERNATIONAL LAW IN JOINT HEARINGS ON THE REPORT OF THE 
SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY 

May 5, 1981 

On behalf of the AFL-CIO, I welcome this opportunity to set forth 
our views and the principles which guide our thinking about immigration 
and refugee policy. 

The AFL-CIO supports the concept of coordinated, integrated immigra- 
tion policy. Piecemeal, haphazard programs undercut effective administra- 
tion and proper evaluation of social, economic and international concerns, 
"therefore we welcome the opportunity for constructive action presented 
to the Congress by the final report and recommendations of the Select 
Comjnission on Immigration and Refugee Policy. 

fhis Commission was set up by Congress in 1978 with balanced, bi- 
partisan representation from the Senate and the House of Representatives. 
In addition, the Commission included four cabinet officials and four 
private citizens, among them Jack Otero, Vice President of the Brotherhood 
of Railway and Airline Clerks , AFL-CIO. 

Immigration experts from the Senate, the House of Representatives, 
the Executive Branch, and the public at large participated in the 
research, consultations, public hearings, debates, and negotiations 
which formed the basis for the Commission's conclusions and recom- 
mendations. In holding these hearings on the Commission's report, 
the Senate and House Immigration Subcommittees have an opportunity 
to press forward toward a coordinated, integrated immigration policy 
for the United States. 

What kind of policy should this be? 

The AFL-CIO reaffirms its support for an immigration policy 
consistent with the nation's tradition for compassion and humane 
treatment. We want an immigration policy that is firm, clear, 
consistent, and fair. 

Any new immigration policy should foster reunification of fam- 
ilies and offer haven for refugees from persecution, while adhering 
to the principle of concern for the welfare of American workers and 
safeguarding the jobs and labor standards of American workers. 



101 



We believe that a healthy, full employment economy is essential 
in achieving the nation's immigration goals. High unemployment re- 
duces America's capacity to pursue our immigration goals and increases 
the urgency of dealing effectively with illegal immigration. 

We reject any suggestion that the primary goal or even a 
secondary goal of immigration policy should be the fostering of 
economic growth through the use of low-skilled and low-paid immigrant 
workers, whether legal or illegal, whether permanent or temporary. 

Diversity enriches our society. We are a better nation for the 
tremendous contributions of the 48 million immigrants who have 
arrived here since 1820. The United States is and must rem.ain a 
pluralistic society. 

Estimates of the illegal alien population in the United States 
range between 3.5 and 12 million. By the year 2000, there could 
be nearly 30 mil] ion people living in this sub-class, without 
rights, prey to unscrupulous employers and subject to the constant 
fear of discovery. Though frightened and docile, this illegal work 
force constitutes a threat to minorities, women and unemployed workers 
who are legal aliens or citizens seeking their own opportunities for 
a better life. 

As members of a nation of immigrants, and as representatives of 
workers who built unions as the means to escape exploitation, we 
deeply sympathize with those who seek a better life in our country. 

The overwhelming majority of illegal immigrants come to 
zunerica to support themselves and their families. Too often, un- 
scrupulous employers prey upon these illegal aliens, forcing them 
to accept low wages and substandard working and living conditions 
in an atmosphere of fear and exploitation. 

For an example of the terrible exploitation that takes place, 
let me call your attention to a recent report in the Washington 
Post on April 26. The news story told about a raid on sweatshops 
in New York City's Chinatown with the raid led personally by 
Secretary of Labor Donovan. 

The Secretary and his Sweatshop Strike Force found more than 
60 illegal aliens, many from Hong Kong, including a young girl in 
the sixth grade and a 90-year-old woman, both working for only $1 
an hour. In all, they found 22 children illegally employed, includ- 



102 



inq 10-year-olds who used sharp trimming shears and 12 to 15-years- 
olds who operated sewing machines. 

These problems are of acute concern to the American labor 
movement which insists on safeguarding its hard-won standards of 
life and work. Unfortunately, illegal aliens are highly vulnerable 
because they are without many of the basic legal rights enjoyed by 
U.S. citizens and legal resident aliens. 

This potential for economic exploitation, coupled with the 
labor movement's historic compassion for the unfortunate, makes it 
very important that there be a strong, fair U.S. immigration policy. 

As noted, we believe this policy should foster reunification 
of families and should provide haven for refugees from persecution, 
while taking a realistic view of the job opportunities and the needs 
of U.S. workers. Furthermore, we believe, as a prerequisite to 
action on legal immigration, U.S. immigration policy must deal 
effectively and fairly with the problems of illegal immigration. 

To deal with these problems, the AFL-CIO supports legislation 
along the following lines: 
1 . Employer Sanctions 

Federal law must provide effective penalties for employers 
who hire illegal aliens, including criminal sanctions 
and injunctions to prevent repeated violations. The lure of jobs 
is what brings most illegal workers into the U.S.A. The quickest 
and the best way to stop illegal immigration is to stop giving jobs 
to illegal immigrants. 

Therefore, we endorse the recommendation of the Select Commission 
(II.B.l) that legislation be passed making it illegal for employers 
to hire undocumented workers. Likewise, we endorse the Commission's 
recommendation (II. B. 2) that the enforcement of existing wage and 
working standards legislation be increased in conjunction with the 
enforcement of employer responsibility. 

We are encouraged by these key Commission recommendations for 
employer sanctions because they reflect an emerging national con- 
sensus that the serious problem of illegal immigration demands 
immediate action by Congress. Employer sanctions, a workable 
identification system, and effective border control are essential 
components of the necessary attack on illegal immigration. 



103 



2. Identification 

Without an effective identification system, employer sanctions 
will not work. It is indeed possible that sanctions might lead 
some employers to discriminate against some U.S. citizen workers. 
Therefore, we believe that federal law must protect American workers 
from employer discrimination by creating a system of identification 
for work purposes. The potential for discrimination is serious 
enough to warrant development of a more secure identification mech- 
anism to enable employers to determine readily the legal status of 
job applicants. There must also be stringent, effective enforcement 
of civil rights laws to protect workers against any possible employer 
discrimination against U.S. citizens with Hispanic surnames or any 
other U.S. citizens. 

We note that the Select Commission did not reach a consensus 
on the specific type of identification that should be required for 
verification of eligibility of prospective enqsloyees for employement . 

While we oppose any "work permit" as used in Europe, we believe there 
must be a standard identification system to be checked by the employer 

at the time of hiring. 

We believe two fundamental safeguards are necessary for 
eventual implementation of a standard identifier: (1) a require- 
ment that no person eligible under the law be denied documentation? 
(2) a further requirement that no documentation can be revoked if 
issued according to the law. Because it is recognized, familiar, 
and already required in job applications, the Social Security card 
could be used if improved and made counterfeit-proof. 

Until an effective identification system is developed, other 
evidence could be used. The alternatives could include a birth 
certificate, naturalization certificate, alien registration card, 
voter registration, U.S. passport, or immigration or registration 
document. The employer should certify with a checkmark on a regular 
form, such as the W-4, that such identification has been examined. 

Some people have argued that an effective, secure identification 
system — whether using a counterfeit-proof Social Security card or 
a data-bank or some other system — will have high start-up costs. 
We suggest that unemployment of U.S. citizens displaced by illegal 
alien workers has a high cost also, with a $30 billion cost to the 



104 



U.S. Treasury in lost tax revenues and higher welfare and unemploy- 
ment costs for each 1 percent of unemployment. 
3 . Border Control and Interior Enfnr'cement 

Effective border control and interior enforcement are also 
essential to stop illegal immigration. (II. A) We concur with the 
Commission that additional funding is necessary to strengthen 
border control and prevent illegal immigration. We also support 
the Commission {II. A. 6), in urging more effective interior enforce- 
ment with follow-up and verification of departure by non-immigrant 
persons in the U.S.A. with legal visas. 

We want adequate support by the Executive Branch and adequate 
funding by the Congress to strengthen border and interior enforce- 
ment activities of the Immigration and Naturalization Service and 
to strengthen anti-smuggling activities to stop illegal entry and 
illegal immigration. 

We support upgrading the post of Commissioner of the Immigration 
and Naturalization Service to the post of Director. (The long delay 
m making an appointment of a Commissioner has been a serious ob- 
stacle to effective operations at INS.) We urge equal funding con- 
sideration by the Executive Branch and by the Congress for service 
and enforcement functions of the INS. Funding requests for INS 
should be considered strictly on their own merits. There must be 
increased funding for additional personnel, equipment and training 
at INS. 

Unfortunately, the fight for constructive immigration laws anc 

oolicies is effectively nullified when positions and funds to support Ihci 
policies are withdrawn. The AFL-CIO registers strong opposition to 
the Administration's budget propo-sal for INS and urges full restora- 
tion of the 1,355 positions and $21.6 million which would be cut 
under the Reagan Administration's budget plan. 

The elimination of positions and over time of INS employees 
will serve only a short-run cosmetic purpose of achieving savings 
in government. In fact the long-run cost to our nation due to 
increased illegal immigration will be very large. As we have in 
the past, the AFL-CIO urges that the funding and staffing of the 
INS be increased to the point where this government agency may 
perform its important mission of providing a system of orderly 



105 



immigration to the U.S., while protecting American workers from 

unfair competition of illegal foreign labor. 

Improving atSministration and employee morale at the INS will 
require better pay, working conditions, benefits, training, and 
resolution of long-standing labor-management problems. Although 
the Commission report does make important recommendations in these 
areas, there are also inaccurate and misleading characterizations 
of INS employees as insensitive and unresponsive. Corruption and 
other abuses must, of course, be corrected. This will require 
better management and more human and financial resources. A sweep- 
ing rebuke of INS employees is unwarranted and unacceptable. 



4 . Labor Standards and Anti-Discrimination 

In addition to employer sanctions, a workable identification 
system, and effective border and interior controls, we stronqlv suoport 
increased enforcement of existing wage and working standards legislation, as 
recommended by the Select Commission (II. B. 2). The Labor Department 
should step up enforcement of labor standards legislation m areas 
and industries where significant numbers of illegal aliens are employed. 
Speedy prosecutions and stiff fines should be put into effect promptly, 
against repeated offenders who violate the Fair Labor Standards Act, 
the Farm Labor Contractors Registration Act, the Occupational Safety 
and Health Act, Social Security, unemployment insurance, and other 
federal laws. 

Likewise, we support increased funds for INS to enable INS 
investigators to conduct area control operations where they have 
probable cause to believe illegal aliens are working, but 
such activities must not in any way be used to discourage the 
right of workers to engage in collective bargaining. 

Title VII of the Civil Rights Act and other existing anti- 
discrimination laws must be rigidly enforced to eliminate any 
possibility that employers may discriminate against U.S. citizens. 

5. Temporary H-2 Workers 

The AFL-CIO opposes any program which would permit importation 
of foreign labor to undercut U.S. wages and working conditions. 
Congress wisely killed a "bracero" program in 1962 and we oppose 

83-514 0-81-8 



106 



revival of such a program in any form, whatever the label. 
Such "bracero" or "guest-worker" programs are contrary to the 
interests of U.S. workers. They will exacerbate unemployment and 
undermine the already low levels of wages in those industries 
which might employ such temporary workers. 

No one should accept the idea that temporary foreign workers 
must be brought into the U.S.A. to take jobs that American workers 
won't take. This idea is just plain wrong. In fact, in a news 
story April 29, the Los Angeles Times reported its recent poll which 
found that 75 percent of unemployed American workers would apply 
for and accept menial work paying from the federal minimum of 
$3.35 to $4.50 an hour. I might point out that $4.50 an hour for 
a full-time year-round job produces an annual income just barely 
above the poverty level for a worker with three dependents. 

We applaud the overwhelming and bi-partisan 14-2 rpjpction 
by the Select Commission of any recommendation to initiate new 
large-scale "bracero" or "guest -worker" programs now or in the 
future. We agree with the Commission in believing "that govern- 
ment, employers and unions should cooperate to end the dependence 
of any industry on a constant supply of H-2 workers" (VI.E). 

We agree with the Commission that the H-2 programs should be 

changed to "remove the current economic disincentives to hire U.S. 

workers by requiring . . .employers to pay FICA (Social Security) 

and unemployment insurance for H-2 workers." (VI.E.) 

f> ■ Labor Certification 

Likewise, we agree with the Commission in calling for continued 
responsibility in the U.S. Department of Labor for labor certifica- 
tion that U.S. workers are not available and that the employment 
of temporary H-2 non-immigrant alien workers will not adversely 
affect the wages and working conditions of other similiarly employed 

U.S. workers. (VI.E) 

At present. Section 212(a) (14) of the Immigration and National- 
ity Act provides that aliens seeking to enter the United. States to 
perform skilled or unskilled labor are excluded "unless the Secretary 
of Labor has determined and certified to the Secretary of State and 
the Attorney General that (A) there are not sufficient workers who 
are able, willing, qualified (or equally qualified in the case of 



107 



aliens who are members of the teaching profession or who have ex- 
ceptional ability in the sciences or the arts) , and available at 
the time of application for a visa and admission to the United 
States and at the place where the alien is to perform such skilled 
or unskilled labor and (B) the employment of such aliens will not 
adversely affect the wages and working conditions of the workers 
in the United States similarly employed." 

This language provides vitally important protection for 
American workers, and we most strongly urge that this labor certi- 
fication process be continued and maintained. We have no quarrel 
with the Commission recommendation (VI. E.) that the application 
process should be streamlined and the timeliness of decisions im- 
proved, but we insist that the key purpose of the labor certification 
requirement is to protect the jobs, the wages, and the working con- 
ditions of American workers and not to make the program "more respons- 
ive to the needs of U.S. employers," as suggested in the Commission's 
report (page 228) . 

We believe there is a urgent need for better enforcement of 
the labor certification process required by Section 212 (a) (14). 

Let me cite just a few examples of the need for better enforce- 
ment of the labor certification requirements. 

In Denver, Colorado, Service Employees Local Union 105 reported 
in 1979 that a janitorial service was importing Korean workers on 
temporary two-year permits and substituting these Korean workers for 
more than 70 American citizen workers in janitorial and custodial 
work at Stapleton International Airport. More than two-thirds of 
the displaced American workers were minorities with poor prospects 
for finding other jobs. 

In another situation, in violation of legislation requiring 
U.S. citizen workers on drilling rigs, platforms and other equip- 
ment on the Outer Continental Shelf, the Seafarers and other 
unions involved in offshore construction in 1979 found that alien 
workers were being used and were taking away jobs from American 
workers . 

Also in 1979 the AFL-CIO reported to the Labor Department a 
number of labor certification abuses, including German bricklayers 
on temporary work visas building a feed plant in Theodora, Alabama; 
imported German and Vietnamese workers painting a tanker in a 



108 



New Orleans shipyard; and imported temporary Mexican workers being 
used to disassemble a plant in Tuscaloosa for shipment to Mexico 
in spite of high unemployment in the area; and various other cases 
of imported foreign workers employed at the cost of jobs of American 
workers . 

These are only a few examples of the many abuses of our immi- 
gration laws and the lack of essential protections for American 

workers from displacement. 

The AFL-CIO believes that Section 212(a) (14) be retained in 

any revision of the present immigration law. Unless the Secretary 
of' Labor has the responsibility of determining in advance that the 
admission of aliens will not adversely affect employment opportun- 
ities or wages, hours, and other conditions of employment in the 
United States, the Secretary cannot effectively regulate the flow 
of immigrants coming to the United States to seek employment. 

We have often indicated to the Department of Labor our willing- 
ness to cooperate in developing procedures and regulations which 
would make the application of Section 212(a) (14) more workable from 
the standpoint of its administration and effectiveness. We are glad 
to renew this offer of cooperation at this time. 

7 . Legalization of Status 

The AFL-CIO supports the Select Commission's proposal (II. C.) 
for legalization of the status of illegal aliens resident in the 
United States. However, in line with the Commission's recommenda- 
tion (II. C. 3.), we insist that the legalization process shovild not 
begin until the massive flows of illegal aliens into the United 
States have been stopped. Otherwise, the legalization process 
would simply encourage additional flows of illegal aliens. 

A reasonable and humane legalization program would adjust the 
status for illegal aliens with a demonstrated attachment to the 
community. While the length of time an alien has lived in the 
U.S.A. is one factor to be taken into consideration, subjective 
values, including compassion for the families involved are also of 
great importance. We would reject any mass deportations. 

8 . Legal Immigration 

While we support the concept of expanded legal immigration, a 
substantial increase at this time would be premature and unwise. 



109 



In our judgment, curbing future illegal immigration and legalizing 
current residents must be accomplished first. There is a need to 
absorb the full effect of a decade of large-scale legal immigration 
and refugee flow and to regularize illegal aliens and their rela- 
tives before increasing the present levels of legal immigration. 

Therefore, we do not favor the new immigration model which is 
part of the Commission recommendations. (III. B. Table 7.) We support 
continued emphasis on reunification of families and a humanitarian 
policy toward refugees and due regard to safeguards for American 
workers as essential components of any long-run policy on legal 
immigration. 
9- Refugee Policy 

The AFL-CIO reiterates its support for the Refugee Act of 1980 
and for America's continued acceptance of refugees as an essential 
part of this nation's immigration policies. No nation in the world 
accepts as many refugees as the United States. This responsibility 
should be shared to a much greater degree by the other nations of 
the free world. While the United States should continue to provide 
haven for refugees from political persecution, this nation cannot 
and should not be expected to accomodate the more than 15 million 
refugees now scattered throughout the world. International refugee 
problems demand international responsibility with htimane, multi- 
lateral solutions. 
10. International Development 

There must be an expanded program for economic development in 
the countries from which illegal aliens come. Only when the "push" 
factor of no jobs and low income in these countries is effectively 
dealt with can the problem of job-seeking illegal aliens be fully 
and finally resolved. Any program involving U.S. aid for economic 
development in these countries must, of course, make certain that 
jobs, wages, and working conditions in the United States are not 
lost or undermined as a result of such foreign aid or investment 
program. 



no 



The AFL-CIO has consistently supported the kind of U.S. aid 
to developing countries that increases job opportunities, raises 
workers' income, and lifts living standards for workers and their 
families. It is essential that U.S. aid programs help developing 
nations establish and strengthen free democratic institutions, in- 
cluding trade unions, and promote strong domestic economies with 
more income and buying power for workers and their families. Decent 
wages and decent working conditions and decent labor standards help 
develop the kind of economy that will provide jobs and income that 
will keep workers in these other nations from illegally seeking work 
in the U.S.A. 

Representative Mazzoli. Mr. Chairman, can I make a couple of 
statements? 

Senator Simpson. Please. 

Representative Mazzoli. Thank you very much. I want to thank 
the panel, Mr. Donahue and his colleagues, for their help today. I 
would like to thank all the panels. I would like to thank my friend 
Bill McCoUum and all the members of our subcommittee who were 
here today. But particularly, Mr. Chairman, I thank you and your 
colleagues and your staff for the warm welcome we have received, 
and for the cooperation in establishing today's meeting. I must say 
it has been very fruitful, and it is a fine first day of this first series 
of three hearings, which I think will lead to action on this report. I 
want to thank you very much for your hospitality. 

Senator Simpson. Well, thank you. I hope we can reciprocate 
tomorrow as we come to the House for our hearing, which will be 
tomorrow at room 2141 at 2 p.m., as we continue the joint hearing 
on the second day of the 3 days of joint hearing. 

And let me too thank you, Mr. Donahue. Your testimony and 
what you hear from these people in Congress, I think shows that 
for the first time in many, many years there is a unanimity there 
that has never been there before, when we have the AFL-CIO in 
its position, which is not far removed from the positions of many of 
us. We can differ on temporary workers or some form of identifica- 
tion, but the issue is, to me, and I know to Chairman Mazzoli, is if 
we are ever going to get something done, it seems the time is here. 
The constituency groups are out there for some action. 

So your testimony underscores that, that we may make the 
grade. At least that is our real hope. There is one group in Amer- 
ica that must be carefully recognized, and they will through many 
hearings, and that is the Hispanic organizations of America. They 
have the most to fear and they feel the most threatened and we 
are going to be working closely with them so that their say is said. 

But there is an interesting constituency building and perhaps we 
can finally get something done. So I thank you for the cooperation 
and the amazing attendance, like total, of the House Subcommit- 
tee, and hopefully we can do that. 



Ill 

Thank you and we will recess until 2 p.m. tomorrow. 
[Whereupon, at 5:45 p.m., the hearing recessed, to reconvene at 2 
p.m. the next day.] 



FINAL REPORT OF THE SELECT COMMISSION 
ON IMMIGRATION AND REFUGEE POLICY 



WEDNESDAY, MAY 6, 1981 

U.S. Congress, Subcommittee on Immigration, Refu- 
gees AND International Law of the House Commit- 
tee ON the Judiciary and the Subcommittee on Im- 
migration AND Refugee Policy of the Senate Com- 
mittee ON THE Judiciary, 

Washington, D.C. 

The subcommittees met at 2:10 p.m. in room 2141 Rayburn House 
Office Building, Hon. Romano L. Mazzoli (chairman of the House 
subcommittee) presiding. 

Present: Representatives Schroeder, Frank, Fish, Lungren, 
McCollum, and Fascell; and Senators Simpson (chairman of the 
Senate subcommittee), Thurmond, and Kennedy. 

Mr. Mazzoli. The hearing will come to order. 

For those of you who were with us yesterday, you will know that 
this is our second day of what will be 3 days of hearings on a 
report filed by the Commission headed by Father Hesburgh on 
immigration and refugee policy. For those who were not with us 
yesterday, I must say — and I will yield to my friend from Wyoming 
soon — that I thought the meetings went very well, and they are 
historic. So far as our archivists have been able to determine, there 
have been few of this kind of meeting in the past. 

We are here not just for the sake of getting a double whammy on 
our witnesses, but to indicate the collegiality and the cooperation 
which exists between the House and Senate, perhaps for the first 
time in recent history, which I think will yield, if anything can, 
some solutions to these vexing problems which have been present- 
ed to us yesterday and will be amplified today by our distinguished 
witnesses. 

Seeing the crowded room, I believe it is an indication of the 
interest across the board. 

I would like to yield to the gentleman whose cooperation has 
made these joint hearings possible. He is a pleasure to work with. 
His staff has been at all times diligent and helpful. And if Senator 
Simpson, the chairman of the Senate Committee on this subject, 
would care to have some words, we welcome him to the House 
Chamber. 

Senator Simpson. Thank you very much. Congressman Mazzoli. I 
am looking forward to the continuation of the joint hearings. They 
are nearly unprecedented. I think this is the first time in 30 years. 

We are doing that to display this aura of collegiality and, even 
more importantly, to reflect that there is no partisanship — biparti- 
sanship yes; we are going to have a lot of that, hopefully — but 

(113) 



114 

there is no partisanship in the issue of immigration and refugee 
poHcy. 

We will have a tough, tough situation and we are going to hang 
together. We both have made that pact. It is an emotional, highly 
charged, powerful issue. 

I really am enjoying working with Chairman Mazzoli in the 
spirit of what I hope is a total reformation of our immigration and 
refugee policies and new progress in every way. And I want to 
thank you especially for the most extraordinary attendance yester- 
day in the Senate of the United States, when each member of this 
subcommittee was present. 

Today Senator Kennedy is hoping to scrub one of his commit- 
ments and will attempt to be here. Senator Thurmond will be here, 
Senator DeConcini, and Senator Grassley. 

But that was an auspicious beginning and great questions, great 
attendance, great interest. I am looking forward to the continu- 
ation of the hearings, looking forward to a continued relationship 
with you. 

Mr. Mazzoli. I thank the distinguished Senator from Wyoming. 
Before I yield to my two friends from Florida, one of whom is a 
member of the committee and one of whom is newly attached to 
the committee for the moment, I would like to mention for the 
benefit of the Senator from Wyoming that this morning, when the 
House Subcommittee on Monopolies marked up the Department of 
Justice authorization, including the section on the Immigration 
and Naturalization Service, there was much said that immigration 
policy, the whole question of movements of people around this 
Nation, and around the world, constitutes the most pressing prob- 
lem we have in the world. 

So I think the Senator and I have, as he said, a very difficult 
subject matter, one on which we have both pledged to work hard to 
accomplish some suitable goals. 

I would like at this point to yield to the gentleman from Florida, 
who is a member of this subcommittee. He has been an excellent 
working member of the committee, and he contributed much 
during our recent trip to California in his questions and in his 
interest in the subject matter. The gentleman from Florida, Mr. 
McCollum. 

Mr. McCollum. Thank you, Mr. Chairman. 

Before I proceed, I would like to ask the chairman for the unani- 
mous consent of the subcommittee to permit coverage of this hear- 
ing by television broadcast, radio broadcast, or still photography, in 
accordance with the rules of the Judiciary Committee of the House. 

Mr. Mazzoll Without objection, it is so ordered. 

Mr. McCollum. It is my great pleasure today to be a Florida 
member and to have before us the Governor of the great State of 
Florida, Robert Graham. 

I want to comment before I introduce him further that I heard 
an introduction this morning that I have never heard before. I 
have heard many introductions in my time. Governor, but my 
colleague Mr. Fascell over here to the right is remembering that I 
heard him introduced as the place kicker for the sandlot football 
team of the Sigma Nu Fraternity, and known as Golden Toe 
Graham. 



115 

Well, I will tell you one thing. Of all the things I have had to do 
with him, he has had a golden toe about it, that is for sure. 

And with respect to immigration, which we are about to discuss 
today, if we continue these deliberations I can assure my fellow 
colleagues from both the Senate and House that Gov. Graham and 
I and those from the Florida delegation particularly share a non- 
partisan view. We are very strongly committed to resolving these 
issues. And he and I have worked together and had the pleasure of 
working with staff. 

And it is a delightful pleasure to be able to present Governor 
Robert Graham to you and to the entire panel today. 

Mr. Mazzoli. Thank you very much, Mr. McCoUum. 

And would the gentleman from Florida, Mr. Fascell, who is 
informally attached to our committee today, care to say an5^hing? 

Mr. Fascell. Mr. Chairman and members of the committee, 
thank you very much for the courtesy extended to me in permit- 
ting me to participate today and hear our distinguished Governor. I 
want to join my colleague from Florida in welcoming him here and 
to listen to his testimony. 

He not only has a golden toe, but he is a very able and bright 
Governor. We are proud of him in Florida. And I might just add a 
little personal note, if you will forgive me, just to say that probably 
one of the better things I have done since I have been in Congress 
was to permit the Governor to intern in my office. 

Mr. Mazzoli. Very good You have a good relationship. Thank 
you very much. 

The ground rules we have today, which we had yesterday, be- 
cause of the number of witnesses, limit the statements to 5 min- 
utes apiece. Then the members will be asking the questions. 

Our first panel which is before us today is composed of State and 
local government officials. Our second panel this afternoon will 
involve public organization witnesses, representing primarily mi- 
nority groups. And our third and last panel this afternoon will be 
of lawyers active in the field of immigration. 

So we first have heard the introduction of the distinguished 
Governor of the State of Florida, Robert Graham. To Governor 
Graham's right is the mayor of Rockville, Md., one of our neighbor 
cities. Mayor William Hanna, representing the U.S. Conference of 
Mayors. And to the Governor's left is the distinguished chairman 
of the Board of Commissioners of Lancaster County, Pa., James E. 
Huber, who is representing the National Association of Counties. 

If there is no problem, Governor, you might proceed, then, Mayor 
Hanna and Commissioner Huber. 

STATEMENT OF HON. D. ROBERT GRAHAM, GOVERNOR OF THE 
STATE OF FLORIDA, ON BEHALF OF THE NATIONAL GOVER 
NORS' ASSOCIATION 

Governor Graham. Thank you. Representative Mazzoli and dis- 
tinguished members. I am pleased to appear before you this after- 
noon to address some of the issues you will face as you seek to 
improve U.S. immigration and refugee policy. 

The Nation's Governors have been keenly interested in our na- 
tional refugee program for several years. Iowa Gov. Bob Ray and 
Michigan Gov. Bill Milliken, whose visit to the refugee camps of 
Indochina touched them deeply, were early and vigorous spokes- 
men for a strong Federal program to address the plight of these 



116 

people. Their interest led to the National Governors' Association's 
1979 policy statement urging both American and international 
action to relieve the human tragedy in Indochina. 

In 1980, the association addressed the issue of large-scale entry of 
foreign nationals into the United States. Recognizing federal pri- 
macy in the area of immigration policy — the association has not 
met since the Select Commission issued its report and thus has not 
formally adopted a response to its recommendations. 

I testify today as Governor of Florida, but my comments are 
presented against the background of the association's earlier policy 
positions. 

I particularly want to discuss an issue that continues to have 
tremendous impact on my State of Florida, the unexpected massive 
arrival of refugees from political repression and economic hardship. 
In the past year, 140,000 Cuban and Haitian refugees poured into 
Florida, as the Federal Government stood by without any policy or 
statutory basis for action. Today we are still awaiting action on the 
main areas of immigration policy that have been found drastically 
inadequate. 

We must develop a Federal contingency plan to deal both with 
any future waves of illegal immigrants and the constant stream 
that continues today. The State of Florida has developed such a 
plan and it is absolutely essential that the Federal Government do 
so as well. 

We must develop a clear-cut Federal immigration policy that 
designates which immigrants we will accept into this country and 
in what numbers. This policy must include a system that works to 
identify all immigrants, assign their status, and follow up on this 
status in accordance with our laws. 

Moreover, the special entrant status pending designation status, 
granted to Cubans and Haitians last summer is a continuing avoid- 
ance of the responsibility for a clear-cut policy. Special status has 
already been extended twice. It is time to stop postponing a deci- 
sion on these refugees and determine once and for all what is to be 
done with them. 

We must develop a policy that recognizes the broad range of 
responsibilities still facing the Federal Government in dealing with 
those entrants already in our country. Many of last summer's 
refugees still await resettlement in temporary facilities. In one 
such facility in Florida, this recently led to disturbances among 
those who have waited too long to be found a location in which to 
begin their new lives. 

In addition, the Federal Government must recognize the wider 
range of assistance States and localities require in meeting the 
demands of an increased refugee population. These include greater 
support for education, special impact aid to respond to the in- 
creased need in such areas as housing and the criminal justice 
system. 

Finally, if we are to have laws and policies, the Federal Govern- 
ment must resolve to enforce them. We cannot subsidize faild 
foreign societies and their undesirables with a policy that declares 
in effect anyone who can land their feet on the sands of Florida's 
beaches has permanent license to run through Florida's streets. 



117 

Since the Federal Government was unwilling to enforce the im- 
migration l^ws when illegal criminal aliens entered our country 
last summer, it must take responsibility for expelling those individ- 
uals now. Since the arrival of the Mariel refugees, our State has 
endured a large rise in the crime rate, due in part to the many 
known criminals who illegally entered this country with the law- 
abiding refugees. 

Castro's criminals do not belong in Florida's communities. They 
belong back in the same jail cells they left in Cuba a year ago. 

In all of these areas I ask Congress to initiate immediate action. 
Of all the options before us, the least acceptable is to do nothing. 
The current situation is unacceptable for two very clear reasons, 
which I state in conclusion: 

First, it is unacceptable because it places an unduly harsh 
burden on the local communities and States that must pick up the 
slack for Federal inattentiveness. Second, it is unacceptable be- 
cause the current situation sends a signal to despots around the 
world that they can dump their refuse on the United States be- 
cause we are unwilling or unable to enforce any controls over who 
enters our country. We cannot allow our Nation to lose control of 
its borders. 

[The prepared statement of Governor Graham follows:] 



118 

Prepared Statement of Hon. D. Robert Graham, 
Governor of Florida 

Senator Simpson, Representative Mazzoll, distinguished Committee members. I 
am pleased to appear before you this afternoon to address some of the Issues 
you will face as you seek to Improve U.S. immigration and refugee policy. 

The Nation's Governors have been keenly Interested in our national refugee 
program for several years. 

Iowa Governor Bob Pay and Michigan Governor Bill Milliken, whose visit to the 
Refugee Camps of IndoChina touched them deeply, were early and vigorous 
spokesmen for a strong federal program to address the plight of these people. 
Their interest led to the National Governors' Association's 1979 policy statement 
urging both American and international action to relieve the human tragedy in 
IndoChina. 

In 1980, the Association addressed the issue of large scale entry of foreign 
nationals into the U.S. Recognizing federal primacy in tihe area of immigration 
policy, the Association urged federal attention to the full range of impact 
such people have upon our society and pledged the support of state governments in 
implementing federal policy. 

The Association has not met since the Select Commission issued its 
report and thus has not formally reviewed its specifics. 

I testify today as Governor of Florida, but my comments are presented against 
the background of the Association's earlier policy positions. 

The refugee issue is one of tremendous importance to the people of Florida. 
Refugees have for many years made up a large percentage of our population, and , 
have contributed to our culture and our growth. In the last year, however, 
the refugee issue has taken on a new crisis status: Since the first boatload 
of Mariel refugees on April 12, 1980, more than 140,000 Cuban and Haitian 
refugees arrived in Florida. Florida has had to absorb a large and continuing 
population influx. We have had to confront a rise in the crime rate due in 
part to the many criminals who illegally entered the country with the other 
Mariel refugees. 

Refugees across our nation, just as in Florida, have for the most part been 
individuals who are able to support themselves and bring skills and education 
with them to the United States. Most refugees do not present the special problems 
associated with influxes such as the Mariel Cubans, or many recent refugees from 
IndoChina. It is precisely because these special cases, which are not in the 
majority, present severe problems, that we must address these concerns separately 
from the overall, positive aspects of immigration into our country. It is this 
specialized area of particular concern that I wish to speak about today. 

Everyone recognizes that immigration and refugee policy is the domain of 
the federal government, and that, therefore, the burdens of immigrants and 
refugees are the responsibility of the federal government. Florida's recent 
experiences have highlighted the areas in which federal action is urgently 
required to rectify refugee handling. There are three broad areas of concern in 
which the federal government must act: funding, management issues, and placement 
strategies. 

FUNDING 

The admission of refugees into this country obviously requires a great human and 

monetary commitment on the part of our people. Immigration decisions have a 

fiscal impact — we must shape our immigration policy within the parameters set 

by the level of assistance we are determined to provide. The first thing federal 

policy must address is the number of refugees we will allow to enter our 

country each year. We will never solve the funding problem without limiting the 

number of refugees we accept to the number that we are willing and able to support. 

We must also be willing to adequately fund those whom we do allow to enter. Our 
goal has long been to aid all refugees by educating them, employing them, and 
getting them off public assistance as quickly as possible. To further achievement 
of this goal, Congress recently applied a three-year limit to the length of federal 
assistance for refugees. If our social service programs are to meet their 



119 



responsibilities to these refugees within the allotted time, however, they require 
increased funding. It is unreasonable to Impose a deadlipe on these programs, 
and not give them the resources to meet it. At the time that the three-year 
limit was imposed, there was no corresponding increase in support for these 
social services. 

Now, we are concerned that the federal government will not meet even its existing 
commitments in this area. Congress is now considering an Administration request 
to rescind $50 million already appropriated for refugee assistance programs. But 
even as the Appropriations committees consider this proposed cutback, the Office 
of Refugee Resettlement and HHS are concerned that a funding shortfall will occur 
in fiscal year 1981. Moreover, the 1982 budget allots funds for all refugee 
education programs for only a one-year period, and provides no funds for the 
Cuban/Haitian entrant education assistance program. 

In meeting the funding needs of those we choose to admit, the federal government 
must recognize the broad nature of support required. The Refugee Assistance and 
Cuban/Haitian Education Assistance Acts of 1980 are major steps forward in 
providing for federal reimbursement of up to 100 percent of medical and social 
service expenditures by the state and local governments. The federal government 
must go further, however, in recognizing the wider range of assistance states and 
localities require in meeting the demands of an increased refugee population. 
These include greater federal support especially in the areas of education and 
criminal justice. The federal government must act to ameliorate domestic 
costs identified with refugee assimilation and adjustment. 

Since refugees tend to migrate to concentrated urban areas, these areas must 
bear a special burden, as available resources and jobs are spread thin. The 
federal government must provide for flexibility in the three-year funding cut-off 
rule, to help especially burdened areas meet their responsibilities to the 
refugees and their own citizens. 

Finally, as the basis for many federal funding programs are census and employment 
statistics, the federal government must make stronger efforts to reflect refugee " 
populations in these figures, especially following large-scale resettlements. 
Otherwise, those areas that carry the nation's burden by housing those who 
seek refuge here, will receive inadequate compensation for the services they 
perform. Congress provided a mechanism to allow such adjustments in the 1980 
Census figures, with the understanding that this mechanism would be usable in 
1981. So far, however, it has not been utilized; Congress must act to insure that 
it is. 

MANAGEMENT ISSUES 

One area of fundamental concern to this committee must be proper management of the 
refugee problem across several levels of government. Several management issues 
are in deep need of our attention. 

Clarification of Agency Roles . Due to the wide reach and complexity of the 
issues involved, numerous federal agencies are responsible for the development and 
implementation of refugee-related policies and programs. Each agency's responsi- 
bilities and their inter-r'»2ationships must be carefully defined. Governors 
and state refugee coordinators require quick access to one central, responsible 
federal official and one authoritative source of Information when problems and 
crises arise in their states. A strong, central focal point is needed within 
the Administration to insure consistent coordination between the Departments of 
State, HHS, and Justice, as well as domestic resettlement agencies under contract 
to the federal government. 

Coordination and Consulation . Coordination and consultation on resettlement 
matters must be brought about between the federal, state and local governments, 
and the private voluntary agencies. Currently, only two states participate 
directly in the resettlement of refugees. In all others, refugees are resettled 
by private groups, often without proper consultation with state agencies. 

States must be kept abreast of resettlement efforts within their borders, so that 
they can maintain the necessary level of services for all members of the community, 
including the refugees. We cannot continue to keep state governments in the dark 
about who is being brought into their communities. Greater cooperation and 
consultation between the states, the federal government, and the voluntary agencies 
Is essential. One solution is to require voluntary agencies to file their 
resettlement plans with appropriate federal agencies to facilitate this goal. 
The states also strongly advocate an advance planning and reporting system that 



120 



will provide for agreement on resettlement plans between state governments and 
private groups before the awarding of reception and placement grants. Such a 
process could utilize, at the state's option, the current A-95 review and comment 
procedure. 

Whatever specific process is adopted, we must take action now that guarantees 
that we will all be working together on this issue, and not separately or at cross- 
purposes. 

Contingency Planning . The sudden Influx of Cubans in the Mariel boatlift proved 
to be an absolute disaster for the national Administration, because it showed 
that we had no federal policy or capability to deal with such a refugee crisis. 
The time has come to stop ignoring this problem: We clearly need a federal 
contingency plan to deal with unanticipated flights of refugees to this country. 
If the federal government does not assume responsibility for all the human 
dimensions of the sudden refugee Influx, then the tremendous burden is left to the 
states. To illustrate the extent of the load that places on a state, we need only 
turn to the situation in Florida one year ago today. 

On May 6, 1980, four South Florida counties were declared federal disaster areas; 
3,594 refugees arrived that day In more than 300 boats, swelling to 18,396 the 
total number taken in by Florida In less than a month. Three hundred additional 
national guardsmen were activated on May 6 alone to handle the refugees arriving 
in Key West, bringing the total Guards called out for that purpose to 700. 

Because of the lack of statutory authority and leadership on this issue, a special 
status had to be created for the Cubans and Haitians who poured into Florida last 
summer. Today, their status is still pending resolution, hampering efforts to 
either assist their assimilation into our country or their return to their own 
country. Because no means were provided to deal with them, many are forced to live 
In tin shacks or simply out in the straet. In preparation for future arrivals, 
the states and the federal government auAt work together to designate sites, either 
within or outside the country, where refugees will be located during initial 
processing, and specify the number to be held at each site. In this way, state 
officials will know in advance where refugees will be coming, and in what numbers. 
The grave problems and impasses encountered by responding only half-heartedly and 
belatedly to this surprise situation has dampened public acceptance of the regular 
refugee program. Our citizens must feel confident that the federal government 
can and will handle any future refugee problems in an orderly and responsible 
manner, if they are to be asked to support a refugee program at all. 

PLACEMENT STRATEGIES » 

The final challenge facing federal refugee policy is to improve existing placement 
strategies. Family reunification has long been a guiding principle in placing 
and resettling refugees. Often, however, distant relatives are placed with 
"families" they have never met, and Incompatabllity often results. In addition, 
many refugee families receiving public assistance become the sponsors for additional 
refugees under this system, leading only to ever-deepening pockets of refugee 
welfare recipients. 

To remedy this situation, we must narrow the definition of family for resettlement ■ 
placement, to include only immediate family members. We must, in addition, 
develop other criteria in the placement of refugees that take into account the . 
overall impact of further resettlement in any area. 

INTERNATIONAL ASPECTS 

Let me briefly touch upon the international dimensions of our refugee and Immigration 
policy. As a sovereign nation, we must take such steps as are needed — consistent 
with the humanitarian principles which have always characterized our role in 
world affairs — to insure that migration into the United States Is controlled by 
our government and consistent with our laws. 

The social and economic forces at work in the world, particularly in the Caribbean 
Basin, including Central America, suggest that the Mariel boatlift, the Haitian 
exodus, and the current flow of Salvadorlans and Nicaraguans and the continuous 
ebb and flow of Mexicans across our southern borders are but the tip of a very 
large iceberg. 

Our policies must recognize that the United States is a strong magnet for much 
of the world's population. We need to reduce the strength of that magnet 



121 



through tough enforcement of fair law's and tough efforts to Increase the social 
and economic strength of our hemispheric neighbors. We can better assist our 
Caribbean friends by providing adequate aid for them in the towns of their home- 
lands than as refugees in this country. We must strengthen the economies of 
their countries, and support democratic stability so that people of the Caribbean 
Basin need not leave their own countries to make a good life for themselves. Our 
government can play a leading role in this effort, but it cannot play the only 
role; private business can and must act as a catalyst for growth and improvements 
in these countries. I am proud to work closely with the Caribbean Central 
American Action and organizations' efforts to bring U.S. private interest 
together in just such a way, to help better the lives of our Caribbean neighbors. 

I look forward to working with you in the weeks ahead, as you address these 
needs of critical concern to the United States. 

Mr. Mazzoli. Governor, thank you very much, and I appreciate 
that statement. 

Mayor Hanna, you may proceed, and then we will have questions 
for the panel afterward. 

STATEMENT OF WILLIAM E. HANNA, JR., MAYOR OF ROCK- 
VILLE, MD., ON BEHALF OF THE U.S. CONFERENCE OF 
MAYORS 

Mayor Hanna. Honorable chairmen and members of the subcom- 
mittees, I am William E. Hanna, Jr., mayor of Rockville, Md. I 
appreciate the opportunity to share with you the concerns of the 
Nation's mayors regarding refugee resettlement and their reaction 
to recommendations of the Select Commission on Immigration and 
Refugee Policy. 

As you know, most of the many thousands of refugees who arrive 
in the United States each year as a result of national policy come 
to urban areas. For humanitarian reasons, mayors and their gov- 
ernments welcome the refugees and want to assist them in making 
a successful transition to their new communities. We strongly be- 
lieve, however, that several changes in the resettlement system are 
needed to prevent imposing a severe impact on localities and to 
enable local governments to service the refugees adequately. 

The Washington, D.C., metropolitan area, including Rockville, 
has the fourth largest concentration of refugees in the Nation. As 
with several other urban communities where large numbers of 
refugees have come, this area is experiencing significant difficulties 
resettling refugees. 

We have a severe shortage of low-income rental units, overbur- 
dened social service and health systems, and a limited job market. 
Employment opportunities for refugees are particularly scarce in 
this area. For the recently arrived refugees, many of whom are 
unskilled and illiterate, finding a job in our predominantly white- 
collar job market is especially difficult. 

Each month, however, we become the new home for many refu- 
gees who need already scarce public resources to become self-suffi- 
cient and to adapt to their new life. As a result, our local resources 
are being strained and competition for limited resources among 
refugees and other low-income groups is leading to increased com- 
munity tensions. 

We are pleased that in developing their recommendations, the 
Select Commission recognized some of the realities which local 



83-514 0-81-9 



122 

governments face regarding refugee resettlement. The Commis- 
sion's recommendations regarding U.S. resettlement policy are con- 
sistent with most of the policy positions adopted by the U.S. Con- 
ference of Mayors over the past years. 

Basically, the Commission endorsed the provisions of the Refugee 
Act of 1980, including the definition of refugees, the numbers of 
visas allocated to refugees, and how they are allocated and the 
principles and overall programs of refugee resettlement. The Com- 
mission, however, also recommended changes in the refugee reset- 
tlement system which respond to local governments' concerns 
about the impact of refugees on their communities. 

The Select Commission recommended that "consideration be 
given to establishing a Federal program of impact aid to minimize 
the financial impact of refugees on local services." For several 
reasons, such as family reunificiation and perceived availability of 
local resources, some localities receive disproportionately greater 
numbers of refugees. The impact of the large influx of refugees in 
many of these communities has been tremendous. At a time of 
continuing shrinkage of Federal, State, and local resources, the 
arrival of large numbers of refugees often exacerbates local prob- 
lems of unemployment, housing shortages, underfunded human 
services and community tensions. 

Existing refugee programs provide important benefits to refugees 
by reimbursing the States and local governments for providing 
cash and medical assistance to impacted communities. The U.S. 
Conference of Mayors supports the establishment of a program of 
impact aid to local governments to reimburse them for the costs of 
providing services to refugees. 

It is crucial that a program of impact aid be established as a 
supplement to existing refugee assistance programs, not as a sub- 
stitute for them. It should be targeted to a limited number of local 
governments which can demonstrate a substantial impact on com- 
munity services. The funds could go directly from the Federal 
Government to the impacted cities and counties. A possible system 
would be per capita grants to selected local governments which 
would be administered in the same manner as general revenue 
sharing funds. 

The Select Commission recommended that "State and local gov- 
ernments be involved in planning for initial refugee resettlement." 
The Refugee Act of 1980 requires the Federal Government to "con- 
sult with State and local governments concerning the sponsorship 
process and the intended distribution of refugees among the States 
and localities." Such consultation, however, is not taking place. 

The Select Commission recommended that refugees be clustered 
in unimpacted areas, and that mechanisms be developed, particu- 
larly within the voluntary agency network, to resettle ethnic 
groups of similar background in those same areas. Several cities 
have reached a saturation point and face increasing difficulties in 
absorbing additional refugees. 

The Select Commission recommended that "consideration be 
given to an extension of Federal refugee assistance reimburse- 
ment." The Refugee Act of 1980 limits full Federal assistance to 3 
years from the date of entry to the United States. The conference 
supports this recommendation. 



123 

As of now I am out of time. 

Mr. Mazzoli. I am sorry. If you wish another minute to proceed, 
that is acceptable. The timer does help us move things along. 

Mayor Hanna. Thank you, Mr. Chairman. 

As of now, local and State governments are not reimbursed 100 
percent for the cost of cash and medical assistance for thousands of 
refugees who remain in need beyond the 3-year period. Many refu- 
gees have not become financially self-sufficient in the initial 36 
months after arrival in the country. 

Where large numbers of refugees have resettled, local and State 
governments bear a disproportionate amount of the cost of provid- 
ing services. The conference supports an extension of full Federal 
reimbursement to State and local governments beyond the estab- 
lished 3-year period, with the same level of services to refugees 
maintained. 

[The prepared statement of Mayor Hanna follows:] 



124 



Prepared Statement of Mayor William E. Hanna> Jr. 

Honorable Chairmen amd members of the subcommittees, I am 
Willicim E. Hanna, Jr., Mayor of Rockville, Maryland. I appreciate 
this opportunity to share with you the concerns of the nation's mayors 
regarding refugee resettlement and their reaction to recommendations of 
the Select Commission on Immigration and Refugee Policy. 

As you know, most of the many thousands of refugees who arrive in 
the United States each year as a result of national policy come to urban 
areas. For humanitariam reasons. Mayors and their governments welcome 
the refugees and want to assist them in making a successful transition 
to their new communities. We strongly believe, however, that several 
changes in the resettlement system are needed to prevent imposing a 
severe impact on localities and to enable local governments to service 
the refugees adequately. 

The Washington D.C. Metropolitan area, including Rockville, has 
the fourth largest concentration of refugees in the nation. As several 
other urban communities where large numbers of refugees have come, this 
area is experiencing significant difficulties resettling refugees. We 
have a severe shortage of low- income rental units, overburdened social 
service aind health systems and a limited job market. Employment oppor- 
tunities for refugees are particularly scarce in this area. For the 
recently arrived refugees, many of whom are unskilled and illiterate, 
finding a job in our predominantely white collar job market is especially 
difficult. Each month, however, we become the new home for many refugees 
who need already scarce public resources to become self-sufficient and 
to adqpt to their new life. As a result, our local resources are being 
strained and competition for limited resources among refugees and other 

low-income groups, which often leads to community tension, will most 
likely become a problem here as it has in other areas . 

We are pleased that in developing their recommendations, the 
Select Commission recognized some of these realities which local 
governments face regarding refugee resettlement. The Commission's 
recommendations regarding United States resettlement policy are con- 
sistent with most of the policy positions adopted by the United States 
Conference of Mayors over the last year. Basically, the Commission 
endorsed the provisions of the Refugee Act of 1980, including the 
definition of refugees, the number of visas allocated to refugees and 
how they are allocated and the principles and overall programs of 



125 



refugee resettlement. The Commission, however, also recommended changes 
in the refugee resettlement system which respond to local governments' 
concerns about the impact of refugees on their communities. 

o The Select Commission recommended that "consideration be 
given to establishing a federal progreun of impact aid to 
minimize the financial impact of refugees on local services . " 

For several reasons, such as family reunification and perceived 
availability of local resources, some localities receive disproportion- 
ately greater numbers of refugees. The impact of the large influx of 
refugees in many of these communities has been tremendous. At a time 
of continuing shrinkage of federal, state aind local resources, the 
arrival of large numbers of refugees often exacerbates local problems of 
unemployment, housing shortages, underfunded human services and community 
tensions. Existing refugee programs provide important benefits to 
refugees by reimbursing the states and local governments for providing 
cash and medical assistance to impacted communities. The U.S. Conference 
of Mayors supports the establishment of a program of impact aid to local 
governments to reimburse them for the costs of providing services to 

refugees. 

It is crucial that a program of impact aid be established as 

a supplement to existing refugee assistance programs, not as a 

stibstitute for them. It should be targetted to a limited number 

of local governments which can demonstrate a substantial impact 

on community services. The funds could go directly from the 

federal government to impacted cities and counties. A possible 

system would be per capita grants to selected local governments 

which would be administered in the same manner as general revenue 

sharing funds. 

o The Select Commission recommended that "state 
and local governments be involved in planning 
for initial refugee resettlement." 

The Refugee Act of 1980 requires the federal government to 
"consult with state and local governments . . . concerning the 
sponsorship process and the intended distribution of refugees 
among the states and localities." Such consultation, however, is 
generally not taking place. While many of the problems relating 
to resettlement are felt primarily at the local level, city 
officials virtually have no voice regarding the placement of 



126 



refugees in their communities. There is, at best, minimal 
coordination with local governments regarding advamce assessment 
of the community's ability to service the refugees cind of the 
potential impact of resettlement. The lack of involvement of 
local officials in the planning of refugee resettlement can have 
an adverse affect on resettlement efforts as well as on the com- 
munity where the refugees are relocated. The Conference has urged 
the federal government and voluntary resettlement agencies to 
provide adequate notice and to consult with local government 
officials regarding the number of refugees to be relocated in 
their city. 

o The Select Commission recommended that "refugee 
clustering be encouraged. Mechanisms should be 
developed, particularly within the voluntary 
agency network, to settle ethnic groups of 
similar background in the same areas." 
Several cities have reached a saturation point and face 
increasing difficulties in absorbing additional refugees. The 
Conference has recommended that efforts be made to promote 
distribution of refugees to less impacted areas. In order to ensure 
effective refugee resettlement in the selected areas, the pro- 
posed effort should include direct involvement of local government 
officials in the planning process with necessary follow-up by 
the local voluntary agencies. 

o The Select Commission recommended that "considera- 
tion be given to an extension of federal refugee 
assistance reimbursement." 
The Refugee Act of 1980 limits full federal assistance to 
refugees to three years from date of entry to the United States . 
As of April 1, 1981, local 2md state governments are not reimbursed 
100 percent for the cost of cash and medical assistance for thousands 
of refugees who remain in need beyond the three-year period . Many 
refugees have not become financially self-sufficient in the initial 
36 months after arrival in the country. Where large numbers 
of refugees have resettled, local and state governments bear 
a disproportionate amount of the cost of providing services. 
The Conference supports an extension of full federal re- 
imbursement to state and local governments beyond the estab- 



127 



lished three-year period, with the same level of services to 
refugees maintained. 

The Select Conunission recomended that "the Office 

of the United States Coordinator for Refugee Affiars 
be moved from the State Department and be placed in 
the Executive Office of the President." 
The U.S. Conference of Mayors has recommended the transfer of 
the position of the U.S. Coordinator for Refugee Affairs from the 
Department of State to the Executive Office of the President. It 
was felt that such a transfer would facilitate overall coordina- 
tion of the refugee program. Weaknesses in the current system 
became evident last spring when the lack of central leadership 
and coordination among the White House and the various federal 
agencies contributed to the confusion surrounding the unexpected 
arrival of approximately 125,000 Cubans. 

1 have commented this afternoon only on those recommendations 
of the Select Commission which pertain to refugee resettlement. 

The Commission, of course, made a number of important recommendations 

regarding immigration policy. The U.S. Conference of Mayors does 

not have a policy on these issues at this time . As such policy 

positions are formulated, however, we will transmit them 

to you so that you will know where the nation's mayors stand 

on these issues. 

I would like to thank you for the opportunity to appear 
at this joint hearing and would be happy to respond to any 
questions you might have. 



128 

Mr. Mazzoli. Thank you very much, Mr. Mayor. 
Commissioner Huber, if you wish to proceed. 

STATEMENT OF JAMES E. HUBER, CHAIRMAN, BOARD OF COM- 
MISSIONERS, LANCASTER COUNTY, PA., ON BEHALF OF THE 
NATIONAL ASSOCIATION OF COUNTIES, ACCOMPANIED BY 
RONALD GIBBS, ASSOCIATE DIRECTOR, NACO 

Mr. Huber. Thank you, Mr. Chairman. Mr. Chairman, honored 
members of both subcommittees, I am James Huber, chairman of 
the board of commissioners in Lancaster County, Pa., which is in 
close proximity to Fort Indiantown Gap, the processing point for 
Cuban entrants. I am also a member of the National Association of 
Counties Task Force on Refugees, Aliens and Migrants. And I am 
accompanied by Ron Gibbs, the associate director of the National 
Association of Counties. 

The National Association of Counties, NACo, appreciates the 
opportunity to testify at these hearings on public reaction to the 
final report of the Select Commission on Immigration and Refugee 
Policy. Although jurisdiction over immigration and refugee policies 
rests with the Federal Government, such policies nevertheless are 
of importance to counties, for county governments in every corner 
of the Nation must deal daily with the impacts of immigrants and 
refugees on the communities in which they resettle. These impacts 
include coping with additional burdens that refugees and other 
aliens place on county services ranging from health care and edu- 
cation to law enforcement. 

Our assessment of the final report of the Select Commission on 
Immigration and Refugee Policy is a positive one. The Commis- 
sion's work represents a thorough reexamination of the Nation's 
immigration laws, which importantly takes into account a too often 
overlooked consideration, the impact of immigrants on the commu- 
nities in which they resettle. 

NACo is in agreement with many of the Commission's major 
recommendations. For one, we support the Commission's approach 
to dealing with the problem of undocumented aliens, which calls 
for stronger enforcement measures to curb the illegal immigration 
into this country. 

NACo agrees with the Commission that employer sanctions 
against the hiring of undocumented aliens is essential. To verify 
the eligibility of persons to work, we support the use of existing 
forms of identification and oppose the creation of a national worker 
identification system, which could be a threat to civil liberties. 

Although NACo supports the employer sanctions, we oppose the 
creation of a guestworker program. Foreign guestworkers would 
have the same negative effects on the domestic labor market as 
illegal aliens have. That is, they too would take jobs away from 
Americans and lower wages. 

Contingent first upon the adoption of strong enforcement meas- 
ures to stop the entry of additional illegal aliens, NACo favors 
legalization of the status of undocumented aliens currently in this 
country. We believe that mass deportations of millions of undocu- 
mented aliens is neither feasible nor in the best interests of the 
United States. 



129 

Our support of legalization is dependent on assurances that the 
Federal Government will reimburse States and counties for any 
additional cost resulting from it. 

NACo feels strongly that counties should not have to bear the 
cost of the failure of the Federal Government to carry out its 
responsibility to control illegal immigration. Therefore, we recom- 
mend that a Federal impact aid program be established to reim- 
burse counties for the cost of assisting undocumented aliens. 

We stress the need for the aid to offset the cost of providing 
health care to undocumented aliens. In Los Angeles County alone, 
such costs are estimated to be $121 million for their current fiscal 
year. 

In the area of refugee policy, NACo agrees wholeheartedly with 
the Commission's recommendation that State and local govern- 
ments be involved in planning for the initial refugee resettlement 
and that consideration be given both to Federal impact aid to 
minimize the financial impact of refugees on local services and to 
extending the period of Federal refugee assistance funding beyond 
36 months. 

Even though it is the locality which ultimately must absorb 
incoming refugees, neither the Federal Government nor voluntary 
resettlement agencies have coordinated the placement of refugees 
with local officials. The lack of local involvement has hindered the 
effective resettlement of refugees. 

NACo firmly believes that the Federal Government, which is 
responsible for admitting refugees, should bear the financial re- 
sponsibility for the cost of assisting them. Therefore, NACo sup- 
ports the immediate adoption of House bill 2142, introduced by the 
Honorable Daniel Lungren and George Danielson. 

Related to refugee issues is the issue of the United States as a 
country of first asylum. Our experience with the influx of more 
than 150,000 Cubans and Haitians during the past year highlights 
the need for clear national policies and contingency plans for re- 
sponding to mass asylum situations. 

We recommend that the legal status of recent Cuban and Hai- 
tian arrivals be clarified as soon as possible, and that the Congress 
amend appropriate Federal statutes to clarify the legal rights of 
applicants for asylum and their eligibility for Federal assistance. 
To the extent that the States and counties incur additional costs 
resulting from asylum applicants who remain in this country for 
long periods of time, we believe that the Federal Government 
should bear financial responsibility for such costs. 

Finally, NACo calls on the Federal Government to develop con- 
tingency plans, in consultation with local officials, for handling 
future mass-asylum situations. 

In closing I would point out that counties are firmly committed 
to providing immigrants and refugees with the same level of serv- 
ices and assistance that is provided to other Americans. However, 
such services and assistance are not without cost. Where federally 
determined immigration and refugee policies result in greater costs 
to State and local governments, we ask that the Federal Govern- 
ment assume financial responsibility for those costs. 

Thank you. 

Mr. Mazzoli. Thank you very much, Mr. Huber. 



130 

[The prepared statement of Mr. Huber follows:] 

Prepared Statement of James E. Huber 

Mr. Chairman, honored members of the subcommittees, I am James E. Huber, a 
member of the NACo ' task force on refugees, aliens, and migrants, and chairman of 
the Lancaster County, Pennsylvania, Board of Commissioners. The National Associ 
ation of Counties (NACo) appreciates the opportunity to testify before you on nation- 
al immigration and refugee policy issues. 

While recognizing that foreign policy, national security, and humanitarian con- 
cerns deserve careful consideration in the formulation of national immigration and 
refugee policies, NACo firmly believes that these policies must also be cognizant of 
the impacts of immigrants and refugees on the communities in which they resettle. 
Immigration and refugee policies are both foreign and domestic policies. And county 
governments in every corner of the Nation must deal daily with the effects of such 
policies. These effects include coping with the additional burdens that refugees and 
other aliens place on county services — ranging from health care and education to 
law enforcement. Although county governments must address the consequences of 
national immigration and refugee policies, jurisdiction in this area rests with the 
Federal Government. We would argue that Federal responsibility for immigration 
and refugee policies should extend beyond making decisions. It should also include 
responsibility for the costs and impacts of immigrants and refugees. States and 
counties should not have to bear the costs of implementing Federal decisions over 
which they have no control. 

NACo'S specific policy positions on major immigration and refugee issues include 
the following: 

I. greater coordination and consultation with local elected officials on 

THE placement OF REFUGEES INTO COMMUNITIES 

NACo supports amendments to the Refugee Act of 1980 which would require the 
Federal Government and voluntary resettlement agencies to consult with local 
elected officials prior to resettling refugees in their localities. In addition, we believe 
that the Federal Government should establish a fair share formula for the distribu- 
tion of refugees nationwide. 

Even though it is the locality which must ultimately absorb incoming refugees, 
neither the Federal Government nor voluntary resettlement agencies have coordi- 
nated the placement with local officials, who have no voice in deciding where 
refugees are intially resettled. The lack of consultation and coordination has hin- 
dered the effective resettlement of refugees. The majority of refugees are concen- 
trated in relatively few counties and States. As of January 1, 1981, roughly 70 
percent of all Indochinese refugees resided in only 10 States. And within these 10 
States, Indochinese refugees are concentrated in a few counties. In fact, two coun- 
ties in California — Los Angeles and Orange — have more refugees that any other 
State with the exception of California. 

Despite this overconcentration, incoming refugees continue to be resettled in large 
numbers into already impacted counties, without regard to their capacities to absorb 
additional numbers. This is not only makes it more difficult for refugees to become 
self-sufficient, but also often leads to community tensions and resentment toward 
refugees. 

II. FEDERAL FINANCIAL RESPONSIBLILITY FOR THE COSTS OF ASSISTING REFUGEES 

NACo believes that the Federal Government, which is responsible for admitting 
refugees into this country, should bear the financial responsibility for the costs of 
assisting refugees. During their initial period of resettlement, refugees are in great- 
er need of assistance and services than the general population. The majority of 
refugees require english language training and job-related services in order to 
become self-supporting. Even with such services, as of January 1981, one-half of the 
444,000 Indochinese refugees in the United States were receiving welfare. 



'NACo is the only national organization representing county government in America. Its 
membership includes urban, suburban and rural counties joined together for the common 
purpose of strengthening county government to meet the needs of all Americans. By virtue of a 
county's membership, all its elected and appointed officials become participants in an organiza- 
tion dedicated to the following goals: improving county government, serving as the national 
spokesman for county government, acting as a liaison between the nation's counties and other 
levels of government, and achieving public understanding of the role of counties in the federal 
system. 



131 

Under the Refugee Act of 1980, starting April 1, 1981, 100-percent Federal fund- 
ing of refugee cash and medical assistance costs became limited solely to reimburse- 
ment for aid provided to refugees who have been in the United States for less than 
36 months. Prior to April 1981, there was no time limitation. Because many refu- 
gees have not been able to become self-sufficient within 36 months, the 36-month 
limitation on full Federal Refugee funding will result in a substantial shift in costs 
to State and local taxpayers. NACo estimates that the additional costs to State and 
local governments will total $70 million for the remainder of Federal fiscal years 
1981 and 1982. 

NACo agrees wholeheartedly with the recommendations of the Select Commission 
on Immigration and Refugee Policy which address the issue of Federal Financial 
responsibility for refugees. The Commission recommended that the Congress consid- 
er extending the period of full Federal refugee funding beyond 36 months, and 
consider establishing a Federal program of impact aid to minimize the financial 
impact of refugees on local services. 

NACo strongly supports adoption of H.R. 2142, introduced by Hon. Daniel Lun- 
gren and Hon. George Danielson of California. H.R. 2142 would amend the Refugee 
Act to delay implemention of the 36-month limitation on 100-percent Federal reim- 
bursement of refugee cash and medical assistance costs until October 1, 1982. This 
delay would prevent an unfair shift in costs to States and counties, while Congress 
reexamines what a reasonable period of Federal fiscal responsibility is. 

NACo also supports the establishment of a Federal program of targeted impact 
aid to reimburse counties for the costs of assistance provided to refugees. State and 
local governments must pay for the provision of many services to refugees which 
are not wholly covered by current Federal refugee funds. 

in. FEDERAL RESPONSES TO THE ISSUE OF THE UNITED STATES AS A COUNTRY OF 

FIRST ASYLUM 

Our Nation's experience with the influx of over 150,000 Cubans and Haitians into 
this country during the past year highlights the necessity for clear national policies 
and contingency plans for responding to mass asylum situations. To this day. 
Federal policies regarding the Cuban and Haitian "entrants" in the United States 
remain confused. Unfortunately, given the political and economic instability in the 
Caribbean and Latin America, we can expect that large numbers of aliens are likely 
to continue to cross our borders seeking asylum. 

NACo feels strongly that the legal status of recent Cuban and Haitian arrivals 
needs to be clarified as soon as possible. In addition. Congress should act to amend 
appropriate Federal statutes to clarify the legal rights of applicants for asylum and 
their eligibility for Federal assistance. That is, what will be the eligibility of asylum 
applicants for AFDC, medicaid, food stamps, and other aid programs while they 
remain in this country? 

We raise this issue because current Federal policy is to extend eligibility for 
AFDC, medicaid, and supplemental security income to many recent Cuban and 
Haitian arrivals, even though they are not technically permanent residents. That is, 
eligibility has been granted to Cubans and Haitians in the United States who have 
pending applications for asylum, or who have the status of "Cuban/Haitian entrant 
(status pending)." On the other hand, asylum applicants from other countries have 
not been made eligible for such assistance. 

NACo also takes the position that the Federal Government should provide full 
reimbursement of State and local costs of assisting Cuban, Haitian, and other 
applicants for asylum while they remain in this country. Asylum applicants have 
been resettled into communities — without consultation with local elected officials — 
and burden local resources. Many of them possess needs similar to those of refugees. 
Because asylum applicants remain in this country for long periods of time because 
of Federal policies or actions, we believe that counties and States should not have to 
bear the costs of assisting them. 

Finally, NACo calls on the Federal Government to develop plans for handling 
mass asylum situations in the future. To the extent that such plans may require the 
resettlement of asylum applicants into communities. State and local elected officials 
should be consulted in preparing and implementing the plans. 

IV. FEDERAL FINANCIAL RESPONSIBILITY FOR THE COSTS OF ASSISTING UNDOCUMENTED 

ALIENS 

NACo firmly believes that the Federal Government, which is responsible for 
enforcing immigration laws prohibiting illegal entry into the United States, should 
assume financial responsibility for the costs of undocumented aliens to States and 
localities. Undocumented aliens place a particularly great burden on county health 
care services. Because of their low income, it is believed that undocumented aliens 
rely heavily on county or municipal health care facilities, which are mandated to 
serve the indigent. For example, Los Angeles County, Calif, estimates that it is 



132 

incurring $121 million in unreimbursed costs for providing health care to undocu- 
mented aliens for the State fiscal year 1980-81. This figure accounts for one-third of 
the county's total health care costs. 

We would argue that, although undocumented aliens utilize locally provided 
services, most of their tax contributions go to the Federal treasury, not to local 
coffers. That is, studies indicate that undocumented aliens often have a portion of 
their wages withheld for Federal income tax and social security; however, because 
of their low income and the transient character of the undocumented alien popula- 
tion, they are likely to pay little or nothing in property taxes — which are the 
primary source of tax revenue for county governments. Thus, although undocument- 
ed aliens may represent a windfall for the Federal Treasury, they are a drain on 
county resources. 

NACo recommends that a Federal impact aid program be established to reim- 
burse counties for the costs of assistance provided to undocumented aliens. In 
particular, we stress the necessity of Federal assistance to offset health care costs 
incurred through assistance to undocumented aliens. 

V. ENFORCEMENT MEASURES TO CURB ILLEGAL IMMIGRATION INTO THE UNITED 

STATES 

NACo believes it to be in the national interest to stop the flow of illegal aliens 
into the United States. We support the position taken by the Select Commission — 
that, in order to curb illegal immigration, a national program of employer sanctions 
against the hiring of undocumented aliens is necessary. Most undocumented aliens 
enter the United States in search of employment. Their employment here for low 
wages and under poor working conditions has resulted in adverse impacts on the 
legal domestic work force. Employer sanctions would remove a major pull factor 
which attracts illegal aliens to this country. 

We wish to make it clear that, although NACo supports employer sanctions, we 
oppose tying them to the creation of a national worker identification system, which 
could be a potential threat to civil liberties. Instead, we believe that there exist 
feasible approaches which would utilize existing forms of identifcation for verifying 
the eligibility of persons to work. NACo also cautions that any program of employer 
sanctions should include safeguards against potential employment discrimination 
based on race or national origin. 

While NACo supports the use of employer sanctions, we oppose the creation of a 
guest worker program as a means of curbing illegal immigration. It is our concern 
that foreign guest workers would have the same negative effects on the domestic 
labor market as illegal aliens have. That is, they, too, would take jobs away from 
Americans and depress wages. 

VI. LEGALIZATION OF UNDOCUMENTED ALIENS CURRENTLY IN THE UNITED STATES 

NACo recommends the establishment of a national program to legalize the status 
of undocumented aliens currently in the United States, as one facet of a broader 
program to address the problem of undocumented aliens. Our support is based on 
the recognition that future control of illegal immigration would be ineffective with- 
out first resolving the status of illegal aliens already in this country — and that mass 
deportation of millions of undocumented aliens is neither feasible nor in the best 
interest of this country. 

In our view, any legalization program is contingent upon first adopting strong 
enforcement measures — such as employer sanctions — to curb the flow of illegal 
aliens. Without any assurances that future influxes will be stopped", a program to 
legalize the status of undocumented aliens currently in this country does not make 
any sense. Furthermore, our support of a legalization program is dependent on 
assurances that the Federal Government will reimburse States and counties for any 
additional costs resulting from such a program. 

VII. FOREIGN AID TO ALLEVIATE OVERSEAS CONDITIONS WHICH LEAD TO MIGRATION 

TO THE UNITED STATES 

Immigration and refugee policies both are foreign and domestic policies. NACo 
strongly believes that this country should continue to be a haven for people from 
other lands who seek freedom and a better life. At the same time, however, in a 
world with millions of refugees and with millions more who want to come here, 
there are practical limits to the number of immigrants and refugees who can be 
successfully absorbed into his country. 

NACo support the use of targeted foreign aid to alleviate conditions in source 
countries which "push" persons to migrate to or seek asylum in the United States. 
Consideration should be given to providing greater assistance to countries of first 
asylum and to other countries which might be encouraged to accept more refugees. 
To the extent that poor economic conditions in Latin America and the Caribbean 



133 

are major stimuli for illegal immigration into the United States, the Federal Gov- 
ernment might target a larger portion of the State Department's foreign aid budget 
for this region. In short NACo believes that such a case of foreign aid would not 
only lead to a reduction in the domestic costs of immigration into the United States, 
but would also address humanitarian concerns. 

In closing, we would point out that the role of county government with respect to 
immigration is to address the needs of refugees and other immigrants, as is done for 
other Americans. Counties are fully committed to providing newcomers to this 
country with the same level of services and assistance that is provided to other 
Americans. NACo calls for national immigration and refugee policies which pay 
closer attention to their impacts on communities to be developed. Where Federal 
immigration and refugee policies result in greater costs for State and local govern- 
ments, we ask that the Federal Government assume financial responsibility for 
those costs. 

Thank you for the opportunity to speak before you. I am prepared to answer any 
questions you may have. 

Mr. Mazzoli. I will yield myself 5 minutes to begin the questioning. 

Governor, you said that one of the problems was the failure of 
the United States to have a policy with respect to the Cuban and 
Haitian entrants, and you said your State does have such a policy. 
I wonder if you might tell us what that is, and how you have 
experienced it. There is a need to reconsider the Refugee Act of 
1980 eventually, and your observations could be helpful to us. 

Governor Graham. In part of the statement that I did not read, I 
used some examples of May 6, 1980, 1 year ago today, as an 
example of what was occurring, at which time we received almost 
4,000 Cuban undocumented aliens through the Key West entry 
facility, provided through some 750 to 1,000 active duty National 
Guardsmen, transportation and other support services, arranged 
for the housing of those individuals in various voluntary as well as 
publicly owned facilities from Key West into the West Palm Beach 
area. 

At that time the Federal capacity to respond to this was virtual- 
ly nonexistent. In order to provide some response, the Federal 
Government pressed the Emergency Management Agency, an 
agency which normally responds to natural disasters, into the 
breach to attempt to respond to this issue. 

It was some 30-plus days after the first heavy waves of Mariel 
boatlifts began to arrive before there was any meaningful Federal 
presence in terms of how to respond to this. The existing front-line 
Federal agencies, such as the Immigration and Naturalization 
Service, were substantially overtaxed, which imposed backup bur- 
dens on the other systems. 

For instance, at one time about a year ago today, when the 
refugees were arriving at a rate in excess of 3,000 a day, there were 
10 Immigration and Naturalization officers on duty at any given 
time, which meant that there was an extremely molasses-like proc- 
essing system, which meant that all of the other support systems 
had to be maintained for a much greater length of time than would 
have been necessary had the processing been expedited. 

Mr. Mazzoli. You mentioned that we should no longer have to 
subsidize failed foreign or domestic policies of other nations, which 
I think is an interesting statement. I wonder if you have any 
thoughts for us on what happens and how the word gets out that 



134 

we will not be the willing recipient of great masses of people when 
they live but 90 miles away. How do we keep from, because of our 
proximity, being this kind of a dumping ground, if you will, for 
their unwanted, and at the same time the haven for those who 
want to leave? 

Governor Graham. First, this must be put in the historical per- 
spective. What happened to the United States by actions of the 
Cuban Government in 1980 is almost without historical precedent. 
The closest example to this would be what the Vietnamese Govern- 
ment did when it took action to force out onto the seas some of its 
unwanted persons. 

I believe that a beginning point towards indicating the serious- 
ness of our objection to this is how we treat those persons who 
would have been excludable had they attempted to gain entry to 
the United States through the normal process or who by their 
actions since they have been in the United States have demonstrat- 
ed that they are no longer eligible for a parole status. 

I know that there were efforts made within the last 6 months to 
negotiate a bilateral agreement with the Castro government for 
return of those social deviants and other excludable persons. Those 
negotiations have not as yet led to any agreement. 

I believe the United States must be prepared to take unilateral 
action to return those individuals, because the alternative of ac- 
cepting the status quo sends that signal to Castro and others of his 
ilk that it is a way to eliminate your undesirables, to send them to 
the United States. 

Mr. Mazzoli. You have certainly thought this out more than I, 
perhaps. What would be your proposal on how to get rid of these 
people unilaterally? 

Governor Graham. One suggestion that has been made is to 
return them through our naval base at Guantanamo. I recognize 
that that is a course of action which carries with it substantial 
risks, risk of confrontation, risk of counteraction by the Castro 
government. 

What has to be accepted is how deep the consequences are of 
inaction, and in my judgment the risks of action are less than the 
risks of a placid acceptance of the status quo. 

Mr. Mazzoli. Thank you very much. 

I yield to the gentleman from Wyoming for 5 minutes. 

Senator Simpson. Mr. Chairman, I am going to yield it right 
back. We have a rollcall vote, so if other members of the subcom- 
mittee would like to question, I will be right back. 

Mr. Mazzoli. The gentleman from New York and the ranking 
member of our panel on the House side, Hamilton Fish of New 
York. The gentleman is recognized for 5 minutes. 

Mr. Fish. Thank you, Mr. Chairman. 

Governor, I cannot help but agree with you, having been in your 
State in late spring of last year and witnessed the arrivals, and to 
see the confusion in U.S. policy about the Cuban entrants. 

I wonder if you can share with us any thoughts that you might 
have, how we could put in place a mechanism to deal with the 
future possibility of just exactly the same thing reoccurring. 

Governor Graham. 1 think there are a number of steps that need 
to be taken. First is the development of an effective national con- 



135 

tingency plan so that, pending the date on which we have an 
effective permanent immigration policy, we at least have some 
capacity to respond to the real human needs which arise, such as 
the experience in 1980 showed. 

A lot of time was spent by Federal agencies discussing the legal- 
ities of what to do with these arrivals. While that debate was going 
on, there were human needs of medical care, shelter, and food that 
were unmet by Federal agencies and therefore became a responsi- 
bility of private voluntary agencies, local governments, and the 
State. 

Second would be, as I indicated in my comments to the chair- 
man, a clear message to countries that would violate so blatantly 
our national sovereignty that we are not going to allow that condi- 
tion to exist and would be prepared to take effective unilateral 
action as an indication of our resolve. 

Third is the primary task that is before you, which is to develop 
a perm.anent national immigration policy that relates to the reali- 
ties of people's movements today. Just to pick one dimension of 
that is to have some expedition to the determination of status. I 
recognize the legitimacy of political refugees. I recognize the tradi- 
tion of this country to accept those persons who are fleeing politi- 
cal oppression. 

The problem that we have is that our current system has vir- 
tually broken down in its ability to make that determination. We 
have had in our State since 1976 something in excess of 40,000 
Haitians. As of today, not the first of those 40,000 Haitians has had 
a status determination. 

What that says is that our systems are not functioning, and 
therefore if you can gain physical presence in the United States 
you have virtually a license to stay here in perpetuity. 

Mr. Fish. You see, I think that. Governor, your State has the 
potential of being the major beneficiary of what you have just seen 
the beginning of, a mass exodus from countries in the Caribbean 
basin. And it is fine to put in place some immigration policy, but 
that is not the same thing as interdiction or other steps that might 
be taken. 

I do not think that an immigration policy on the part of the 
United States would make much difference to people coming from 
countries that have one-twentieth to one-fortieth of the standard of 
living of the United States. I just do not know myself what might 
happen in case we have a total repeat of what happened from Cuba 
a year ago. 

Governor Graham. I think there is a series of things that need to 
be done, some of which are of a crisis intervention nature and some 
of which are very fundamental. At the crisis intervention level is 
the necessity for there to be a Federal capacity to respond to the 
human dimensions of the issue. 

And maybe the most fundamental level is to recognize that 
immigration is a function of a push, because of economic, social, or 
political conditions in the host country, and the magnetic pull of 
the United States. There is little that we can do or would want to 
do to reduce the magnetism of the United States as a desirable 
place for people to live. In fact, communications improvements are 



136 

making our standard of living better known and therefore increas- 
ing our magnetism. 

I do think there are some things that we can do to reduce the 
push factor from the host country. As an example, we have a great 
opportunity in a country that had many of the characteristics of 
Haiti with Jamaica. Jamaica had had a deteriorating economy for 
8 years. Each year their gross national product had declined. A 
great deal of political instability. Now Jamaica has a new govern- 
ment, with good indications that they may be ready to make some 
fundamental reforms which will add to the long-term stability of 
that nation. 

I believe that it would be a significant part of our national effort 
to deal with immigration to have an enlightened policy, both gov- 
ernmental policy and a private sector policy, that encouraged the 
positive things that are happening in Jamaica, both because of 
what it will mean to that particular country and what it will mean 
in terms of a signal of U.S. interest and priority on strong, stable 
free market democratic societies in the Caribbean basin. 

Mr. Mazzoli. The gentleman's time has expired. 

The gentleman from Florida, Mr. McCollum. 

Mr. McCollum. Governor, I am glad to hear that you share the 
views I expressed hearing in the hearings we had several weeks 
ago, and Congressman Hall did also, that the best way to deal with 
the problem of these who are here today from Cuba who are in fact 
deportable and in fact criminals should be to take the necessary 
step to go through Guantanamo. I am afraid there are not enough 
listening to us, and I am glad to hear you make that statement 

today. 

I am concerned about a number of the hearing subjects that 
came up yesterday that I would like to get your views on and 
perhaps the mayor's and the counties' view on to some extent. One 
of them concerns the total count on the number of immigrants 
coming into this country. 

Right now the Select Commission is recommending that long 
immigrants, visa immigrants, be limited to 350,000 per year. They 
also, however, have many exceptions in the Select Commission 
report as to total numbers of people who could come in. The 
refugees are a separate category, that is those that are legally 
identified, and there is a cap under the refugee proposals in the 
act. 

But those seeking asylum, such as the Cubans in our case, those 
that we call refugees but really are not technically, are not includ- 
ed under the cap. Spouses and children are not included under the 
cap, and a number of broader categories are not. 

Do you believe— and I will ask this first of the Governor and 
then to the other two panelists— that we should have a total na- 
tional cap, a certain number that, regardless of the category, this is 
the absolute maximum per year allowed into this country? 

Governor Graham. I would support an absolute cap, with a 
provision for a pour-over from 1 year to the next for an emergency 
situation, which I understand is incorporated in the legislation that 
has been sponsored by Senator Huddleston and Senator Chiles. 

Mr. McCollum. What about you, Mr. Hanna? 



137 

Mayor Hanna. Well, the conference has no official policy on 
that. My personal opinion would be that I would agree with the 
Governor. I think there should be some kind of an absolute cap, in 
the sense that no matter how you want to administer this policy, 
there are just so many immigrants that can be handled at one time 
and handled properly. You know, even if you fill the bathtub, you 
have to start with a small nozzle. So no matter how big you want 
the bathtub to be, there has to be some measured way of letting 
people in so that it does not just overpower the system of support. 

Mr. McCoLLUM. Mr. Huber? 

Mr. Huber. The National Association of Counties has at this 
point made no decision, definitive decision. However, there are 
several things which would indicate that unless the Federal Gov- 
ernment does provide funds for these refugees, that some type of 
limitation is necessary. At this point counties are facing a tremen- 
dous impact of backlash. Impacted areas are receiving backlash. 

For example, in the Los Angeles area, I think the Los Angeles 
County Board passed legislation prohibiting hospitals from giving 
service to illegal aliens. In Dade County, I believe 7 years ago there 
was a referendum on signs published in both English and Spanish. 
Just recently, I think within this year, there was another referen- 
dum, which was a sign of resentment, a sign of this backlash I am 
talking about, to do away with the signs. 

In my own area, there is a tremendous amount of backlash from 
other minorities because they want housing, they want jobs. And 
unless something is done, unless some limitation is put on, I really 
fear the consequences of the backlash. 

Mr. McCoLLUM. Thank you. 

Governor Graham, I would like to pursue another area that the 
Select Commission is involved with, which particularly affects Flor- 
ida and agriculture. There is a concern over many of us in Florida, 
and I know you share it to some degree, with employer sanctions 
and how it could affect many places, but particularly agriculture. 

And our testimony yesterday got into the H-2 program, the 
possibility of guest workers, and the difficulties of administering 
the program of employer sanctions with a card out in a field, say in 
a grove, where you have somebody who is a foreman out there 
actually screening folks. And how would you get somebody identi- 
fied? How would an employer be able to identify an undocumented 
alien or certify that the card was in fact one that was not fraud? 

I would like to know, first of all, your judgment, your opinions as 
to the feasibility of a card in the agricultural area or any other 
employer sanction; and second, whether or not you agree with the 
Select Commission's opinion that we should restrict the H-2 pro- 
gram further by requiring the employer to pay social security and 
unemployment compensation on H-2 workers, which currently 
they are not and which the Agricultural Employers Association 
yesterday indicated they oppose. 

Governor Graham. On the second question, Mr. Congressman, I 
cannot comment. I do not have sufficient information as to the 
implications of social security and workman's comp to have a 
meaningful judgment. I do believe that some form of worker identi- 
fication as a means of providing a control and being able to enforce 
sanctions against an employer are desirable. 



83-514 0-81-10 



138 

We have had in our State a positive program of utilization of 
guest workers, primarily from Jamaica and Barbados, in our sugar 
cane operations. These are jobs which are very difficult, dangerous, 
and for which there is relatively little domestic labor competition. 
The guestworkers from those two island countries have been essen- 
tially fulfilling a need that would have gone unfilled but for their 
presence. 

We have in Florida laws which have had as their objective to 
impose sanctions against an employer who knowingly employs an 
illegal alien. We have a crew chief registration law through which 
many migrant laborers work under the supervision of a licensed 
crew chief and it is the responsibility of that licensed crew chief to 
verify the status of the persons that are under his employ. 

Mr. Mazzoli. The gentleman's time has expired. 

I would like to pursue that same question that the gentleman 
was on for a moment, and I will yield myself 5 minutes with Mr. 
Huber, because, apparently, NACo is against guest workers. Is that 
correct? 

Mr. Huber. Yes. NACo has taken the stand that we oppose the 
guest worker program and we feel that the guest workers would 
have the same negative effects on the domestic labor market that 
illegal aliens have. They would take jobs away from Americans and 
lower wages. 

Mr. Mazzoli. Now, we used the cane fields in Florida as a point 
yesterday, that there are no Americans available, that Americans 
will not do that work. And I just wondered— and this may be 
outside your field— whether you are familiar with any possibility 
that in using guest workers it would be to fill jobs that could not be 
filled by Americans? Has that come before NACo? 

Mr. GiBBS. Mr. Chairman, if I might respond. I think before we 
would go to any type of massive or nationwide guest worker pro- 
gram, we should begin with small scale pilot projects. In the agri- 
cultural area we are aware of specific problems with harvesting 
crops in certain areas of the country and the need for short-term 
labor. 

There would be a great deal of opposition by border counties 
such as El Paso and San Diego if a massive guest worker program 
was established immediately. 

Mr. Mazzoli. Well, we were out there. There might be some who 
do feel strongly, but there were some who apparently thought that 
a kind of guest worker program, an enhancement of the H-2 but 
beyond what the Commission has recommended, might be one facet 
of a multifaceted approach. 

I do not think we are looking at any one of these in isolation as 
the only answer. We are talking about border enforcement. We are 
talking about interior enforcement. We are talking about employer 
sanctions. I would like to pursue this again with NACo. Apparently 
you are also against the use of any kind of identification card or 
worker identification. 

Mr. Huber. Yes. We are opposed to this, basically for the reason 
that it could be a threat to civil liberties and could be a discrimina- 
tion developing against 

Mr. Mazzoli. I wonder if it is a worse threat to have a card than 
to work in a sweatshop or to be paid exploitation type wages, which 



139 

we have heard is one of the other situations which develops when 
employers are in the habit of hiring these people in some cases and 
not doing right by them. 

I wonder if by having a card, which then gives the employers 
nothing to argue about — they then should be subject to severe 
sanctions for knowingly hiring an undocumented worker — it puts 
them in a position where they cannot do some of the things they 
are doing today. So I wonder if NACo might consider that or if it 
did consider it in making this opinion or judgment. 

Would you know how the judgment was arrived at? 

Mr. GiBBS. The NACo task force debated the issue at great 
length, and the Hispanic elected officials within our organization 
have been opposed to a worker ID card. Civil rights concerns are 
important qualifications that we have integrated into our position 
on employer sanctions. We will raise your position to our members 
at the next meeting. 

Mr. Mazzoli. Well, you make your own mind up, but there has 
been some material put in the record in the last few days — yester- 
day Father Hesburgh talked at length about the use of a kind of 
card, perhaps the social security card, noncounterfeitable — that it 
might be worthwhile your taking a look at. There has been a 
certain amount of discussion of the state of the art that has come 
in. 

Mr. Hanna, you talked about impact aid, and you thought that 
might be an interesting proposal. My time is about to expire, but 
for about a minute or so would you give me some ideas? Perhaps 
focus on a method to help the counties and cities which are impact- 
ed, without just throwing more money around, which may not be 
the most efficient use of it. 

Mayor Hanna. Well, I think we definitely support the idea of 
impact aid, but we do not think it should go to everybody. We 
think it should go to those areas that really are being impacted. 

Furthermore, we think that as a 

Mr. Mazzoli. Excuse me. If you do not have it today, maybe the 
U.S. National Conference of Mayors could develop a formula. How 
would you determine impaction? If you could supply that, we would 
be very appreciative of it. 

Mayor Hanna. We would be happy to provide that for the record 
at a later time, Mr. Chairman. 

But one thing, a derivative of the need for impact aid, is that 
where we failed, where the Federal Government has failed, is in 
providing an equitable distribution of these people around the 
country. I mean, the Governor of Florida has certainly a much 
greater problem than the Governors of most States. And I do not 
see why we do not try to allocate these people all around the 
country. 

I think that as long as it is equitable, I do not believe you are 
going to find any area of the country that is not willing to do its 
part. But I can understand why no area wants to have just singu- 
larly, unusual burdens placed on it. 

Mr. Mazzoli. My time has expired. All of us who went to Califor- 
nia heard so much about what they call secondary migration, 
which occurs because of the climate and the fact, that so many of 
their countrymen are already there. There is an additional lure to 



140 

get them from Minnesota and Kentucky and everywhere else to 
California and to Florida. So it is a problem. 

Now, having returned, and we thank him for his continued 
effort, the gentleman from Wyoming, our cochairman is recognized. 

Senator Simpson. Finding your way through the subterranean 
caverns, where it says "SB" here it means "subbasement" and over 
there it means "subway" — well, I finally made my way back. 

Now let me, Mr. Chairman, if I may, enter into the record a 
statement that was presented to me by one of my colleagues, and I 
would hope that it would appear prior to my remarks, a statement 
of Senator Hawkins of Florida. 

Mr. Mazzoli. Without objection, so ordered. 

[The prepared statement of Senator Hawkins follows:] 

Prepared Statement of Senator Paula Hawkins 

Senator Simpson, Representative Mazzoli, distinguished committee members, 
thank you for giving me the opportunity to submit this statement. 

Governor Graham, I would also like to thank you for your comments and sugges- 
tions. It's always a pleasure and a privilege to hear from my fellow Floridians. 

Since there are presently in the United States between 3 million and 8 million 
illegal aliens, this is an area of concern for all Americans. However, because of the 
high concentration of refugees in south Florida, this problem is a particular concern 
to Floridians. 

Governor Graham, I have had the opportunity to review the written text of your 
prepared statement in which you emphasized the need for a comprehensive contin- 
gency plan to deal with future Mariel-type problems. 

Please let me take this opportunity to assure you and all Floridians that my staff 
and I are working closely with the White House on this issue and that we anticipate 
legislation being submitted to the Congress this summer which will form the basis 
of such a contingency plan. 

In all likelihood, the plan would be centered around the following proposals: 

1. Criminal penalties for boat owners who bring aliens into the country. 

2. The seizure of boats from those who fail to pay the fines imposed upon them for 
violating U.S. immigration laws. 

3. Preventing, during an emergency situation such as existed during the Mariel 
boatlift, small private vessels from leaving south Florida to go to foreign countries. 

4. Stopping vessels in international waters to determine if there is evidence of an 
attempt to violate U.S. immigration laws. If so, the vessel would not be permitted to 
enter U.S. waters. 

5. Strict enforcement of all U.S. immigration laws. 

As you indicated in your statement, the sudden influx of Cubans in the Mariel 
boatlift proved to be an absolute disaster for the national administration, because it 
showed that we had no national policy to deal with the problem. 

I am confident that the legislation that will be submitted to the Congress this 
summer will help provide us with a national plan so that the present administra- 
tion is more prepared to deal with this problem than was the last administration. 

Senator Simpson. With regard to local elected officials, you fre- 
quently state that refugee policies are within the Federal jurisdic- 
tion or purview, and therefore the Federal Government should 
bear the cost of refugee resettlement and even long-term mainte- 
nance. Given the fact that at least the vast majority of refugees do 
adjust to U.S. society and become economically self-sufficient and 
contributing members of the community, at what point should 
Federal fiscal responsibility end and State and community respon- 
sibility begin for certain refugees who may never become self- 
sufficient? 

I ask that of Mr. Huber. 

Mr. Huber. Well, let me say first of all, Senator, that, as far as 
refugees becoming self-sufficient, I have some statistics here, and I 
will be glad to furnish you with a copy of this, which shows that 



141 

from September 1975 there was 11.8 percent of the refugee popula- 
tion receiving cash assistance, and in August 1980 there was 45.4 
percent of this population receiving cash assistance. That seems to 
indicate that there is a tendency for these people not to become 
self-sufficient, but to start to rely on this cash assistance. 

So I think that assuming that these people are naturally becom- 
ing self-sufficient is a false assumption. 

Senator Simpson. I understand your presentation of those fig- 
ures. But we will be dealing with the issue somewhere in the 
course of our deliberations as to at what point Federal responsibili- 
ty ends in the situation, if ever. Surely it does. And I think we are 
told continually that is a Federal problem. But I do not know that 
Federal permanent involvement is realistic. I guess that is where I 
am. 

Mr. GiBBS. Mr. Chairman, this is a very difficult question to 
respond to and one that our association has debated at great 
length. The issue is that every refugee population is different. The 
Hmong tribe that has come in from the central highlands of Viet- 
nam are very different from the Soviet refugees, and they all come 
into this country with varying levels of English, employable skills, 
and so forth. 

Therefore, it is difficult to generalize about a specific deadline by 
which all refugees can become self-sufficient. Some may require 12 
months to become self-sufficient while others may require 48. 

A major concern to us is that some type of targeted assistance 
formula be developed in the area of social services, employment, 
and other impacted services that are necessary for refugees to 
become self-sufficient. 

Senator Simpson. Thank you. I appreciate having your response. 

Governor, you and I have had the opportunity to visit briefly and 
I have enjoyed that in the past. I know of your deep feeling in this 
area. Your statement was rather a powerful one in every sense. 

Let me ask you: I would be most interested in what I have seen 
as a change and shift in attitude of the Select Commission as we 
dealt with this extraordinary issue. When you first present the 
facts to groups of people without the facts and watch their first 
response, which is, no, we cannot go for that, or yes, we can go for 
that, and then after processing the information they suddenly say, 
wait a minute, I see where we are going or what we have to do. 

Could you just briefly tell me of any change in attitudes that you 
might have had since the beginning of this and where you are 
now? Where have been the signposts along the way for you as you 
have reached this very strong position? 

Governor Graham. You have to look at the world as a series of 
options, one of which is the maintenance of the status quo. There is 
a temptation to succumb to the inertia of doing tomorrow what you 
did yesterday because it is the easy thing to do. And I believe that 
the application of that theory to this problem is a very common 
one. 

I have come to see the pragmatic implications of the acceptance 
of that status quo, what it does, for instance, in terms of increasing 
levels of criminality in a community, increasing levels of human 
discord where there had been harmony, what it does in terms of 



142 

sending messages external to the United States that make us even 
more vulnerable to those types of illegal action in the future. 

Those experiences have led me to feel that we have got to have a 
national immigration policy that is firm, fair, and enforceable. And 
I think that is the fundamental task of this committee. 

Senator Simpson. Indeed it is. And I think that a majority of us 
feel that the three key steps — and they must come together or we 
will have nothing — are increased enforcement both at our borders 
and internally — some form of employer sanctions, and some type of 
secure, counterfeit-resistant identification system. 

We could come out of a long couple of years and say that we got 
one of those or two of those and we will not have solved the 
problem in my mind. Do you share that view? 

Governor Graham. I would agree with that. And I understand 
that there has now been legislation introduced which would estab- 
lish some of the more specific standards of that, including the use 
of a social security card as a basis of that identification, which 
seems to me to be an eminently reasonable place to start in terms 
of that goal. 

Senator Simpson. That is an interesting one that we are going to 
pursue, and that is we know of the great misuse of the social 
security card. You can purchase one anywhere in the country for 
20 or 30 bucks and when you have one, you are in business. So that 
is one of the things that we will pursue as we get to some kind of 
system of identification, and none of us are set on what that would 
be. 

One other question of Mr. Huber or your organization. Your 
organization advocates that the Federal Government establish a 
fair share formula for the distribution of refugees nationwide. Now 
I may be repetitive in my questioning here, because I heard Chair- 
man Mazzoli speak of secondary migration, which is a very real 
issue and one that we perceive with great interest. 

So these refugee arrivals also move from the area of initial 
resettlement. What incentives could be developed to encourage a 
wider dispersal of refugees and to counter the tendency toward this 
secondary migration which we find so curious but real? 

Mr. GiBBS. If I might answer, Mr. Chairman, one of the things 
that we have looked to in working with the U.S. Coordinator's 
Office is to develop a comprehensive and coordinated strategy for 
refugee resettlement within this country, because there really is 
not one at the present time. The process is left to the voluntary 
agencies in New York to sit down through their statewide network 
to resettle refugees within the United States, which I think has 
worked well in the past. 

But at this juncture there is a need to look at coordination with 
local elected officials and to consider unemployment, housing avail- 
ability, school availability in areas where refugees are resettled. 
We are very aware that 80 percent of refugees are family reunifica- 
tion. But there is 20 percent where it is possible to find certain 
areas of the country that would be more acceptable for resettle- 
ment. 

The Cambodian project is an example where the State Depart- 
ment is attempting to resettle 50,000 Cambodians by considering 
economic and social conditions in localities. The problem is that 



143 

the local elected officials, the mayors and county people, have not 
been consulted and there is a possibility of moving 500 to 1,000 
Cambodians into an area without proper notification. 

Senator Simpson. Thank you, Mr. Chairman. 

Mr. Mazzoli. The gentleman from California, Mr. Lungren, is 
recognized for 5 minutes. 

Mr. Lungren. Thank you, Mr. Chairman. 

I would like to go at the question of the Federal responsibility 
here slightly differently than we did a minute ago, and that is, 
acknowledging that the Federal Government maybe did not do as 
good a job as it could have done, at least in hindsight we can say 
that, in resettling people or dispersing them throughout the coun- 
try, and acknowledging that maybe now we are doing a little bit 
better job of that, recognizing that is a difficulty, we still have the 
phenomenon of secondary migration, which is that regardless of 
where you resettle people they are going to go where they want to 
go. Our Constitution allows that. And as a result, a very few States 
can end up with 70 percent of all the refugees that have come in 
from Southeast Asia. 

That is where I think, in terms of looking at a Federal responsi- 
bility, at least in my mind, it becomes a little bit clearer, where 
you have an area that, like a county in my particular area, has 10 
percent — or 1 percent of the population of the United States and 
has 10 percent of all the Southeast Asian refugees. You get a little 
bit of an idea why, if we just let the States and localities bear the 
burden at a time when we do not really have facts to suggest that 
they have had a reasonable period of time in which to get these 
people off welfare assistance, we are asking local communities to 
accept too great a burden. 

Having said that, let me move on to another subject, and I would 
like to ask this of Governor Graham. Obviously you have been very 
concerned about the fact that we had what I would suggest is a 
lack of immigration policy in this country for some period of time 
and were wholly unprepared to deal with the Cuban situation of 
this last year. I would just ask you what suggestions you have to 
guide the Federal Government in the happenstance that Fidel 
Castro decided that he would send another 100,000 people to the 
shores of Florida. 

Governor Graham. I have responded to a similar question earli- 
er, and I believe that there are basically the following steps: One, 
ideally we should attempt to reach some type of a bilateral accord 
Iwith Castro which would include the question of disposition of 
those persons who would have been excludable, either because of 
their condition or status at initial entry or because of their actions 
since they have been in the United States. 

And second, part of that would be a consideration of what would 
be U.S. policy toward family reunification of persons from Cuba. 
We had a very successful and effective program from the mid- 
1960's until the early 1970's through the freedom flights, through 
which in an orderly manner, with appropriate screening while the 
jperson was still in Cuba, many thousands of persons entered this 
tountry and have become very positive contributing members of 
our State. 



144 

Second, I would say that we must have an effective Federal 
contingency plan to provide for the real human needs in a wave 
similar to the Mariel boatlift imposed should that be imposed 
again. 

Third, we must be prepared to identify and exclude those persons 
who fall into the category of social deviants and would not have 
been acceptable into our country had they come through a normal 
processing period. I think that we created an incentive for Castro 
to engage in his actions last summer and a potential lingering 
incentive to do so in the future by the way in which we placidly 
accepted those persons that he very consciously unloaded on the 
United States. 

Mr. LuNGREN. In response to that, I have a couple of questions. 
One is, I would share your hope that we could get some coopera- 
tion. Based on recent history, it kind of seems doubtful that we 
can. And in the absence of that, what would you suggest from your 
perspective that we do with people that we identify as socially 
unacceptable? 

I mean, I think that is a tough question. I do not think there is 
an easy answer. I would just like to know what you feel about that. 

Governor Graham. Accepting the premise that there are no easy 
answers and none of the alternatives are free of the potential of 
risk and confrontation, my own recommendation would be to iden- 
tify those persons and return them back to Cuba through the U.S. 
naval base at Guantanamo. 

Mr. LuNGREN. And they will accept that? Well, we can see. 

One last question on this. In terms of overall immigration policy, 
in terms of the possibility of having large numbers of people 
coming from Cuba or a similar country in the future, would you 
include those within the overall numbers that we establish to be 
accepted in any one particular year? Would you exclude them from 
the total number? Or would you have some flexibility built into the 
law so that we could allow an additional number if something like 
this occurred in the future? 

Governor Graham. As I understand, the Huddleston-Chiles bill 
that has been introduced in the Senate will provide for an absolute 
cap, but with provisions for pour over from 1 year to the next in 
the event of an emergency situation. I would support that concept. 

Mr. LuNGREN. In terms of the total number of people to be 
allowed in? 

Governor Graham. Yes. 

Mr. Mazzoli. The gentleman's time has expired. 

We welcome the Senator from Massachusetts and recognize him 
for 5 minutes. 

Senator Kennedy. Thank you very much, Mr. Chairman. I want 
to welcome our panel and I regret I was not here for your earlier 
presentation. 

One of the very complicated issues that we are going to be 
dealing with is the adjustment of status of undocumented aliens 
who are already here. And I understand. Governor, that you had 
mentioned we ought to move toward adjusting the status of many 
of the Cubans that have come here and also the Haitians. Am I 
correct in that understanding? 

Governor Graham. Right. 



145 

Senator Kennedy. Would you also adjust the status of undocu- 
mented aliens that have come in from Mexico, who are also here 
like the Cubans? 

Governor Graham. Yes. I think we need to have an administra- 
tive judicial process by which, within a reasonable period of time, 
status can be determined and therefore a decision made as to 
whether this individual is going to be allowed a permanent resi- 
dence in the United States or will be excluded. 

Senator Kennedy. Up to what period of time? Would you make 
it up to the current time? The Select Commission report talks 
about, I guess it is, January 1980. Would you be for, then, a general 
amnesty up to January 1980? 

Governor Graham. No. 

Senator Kennedy. What year would it be for? 

Governor Graham. I would not personally favor a general am- 
nesty. I would favor establishing a procedure by which determina- 
tions can be made on an individual basis as to whether these 
persons are qualified for permanent residence. And I think this is 
particularly true because we know that in the Mariel boatlift there 
were substantial numbers of persons who were purposefully 
dumped on the United States, and I do not believe that we can 
accept a policy that says that they will be permanently accepted. 

Senator Kennedy. Well, outside of those I guess that you call 
socially unacceptable, I suppose those that have, a criminal record 
on some kind of infractions of the law, then do you support a 
general amnesty for those outside of that category? 

Governor Graham. I would support a case-by-case determination 
as to whether the individuals are eligible for permanent status in 
the United States. 

Senator Kennedy. Well, what about an undocumented worker 
that is working on a tomato farm in Orange County, versus a 
Cuban that is working in a shop in Miami? What are the differ- 
ences? What criterion are you going to give to us? 

Governor Graham. The standard we have used in past is basical- 
ly the determination of whether the person is here because of a 
legitimate fear of political persecution and therefore qualifies as a 
political refugee, as contrasted with a person who is here out of 
essentially economic reasons, who is not entitled to permanent 
status in the United States without proceeding through the normal 
immigration policies. 

Senator Kennedy. You do not think that was true about Nur- 
eyev, do you, the Russian dancer? You do not think it was true 
about the dancers, the Soviet athletes that come here? Do you 
think they are in danger of risking their lives if they go back to the 
Soviet Union? 

Governor Graham. I cannot speak to those individual cases. But 
it has been the policy of the United States up until fairly recently 
to assume that persons who came from a Communist-dominated 
country were presumed to be seeking political refugee status. It is 
my understanding that that was changed in the immigration law 
which went into effect April 1 of 1980, which was part of the 
complexity dealing with the Mariel boat people. 

Senator Kennedy. That is true, we changed it to the U.N. defini 
tion in terms of the refugees. But I am not talking about people 



146 

arriving here, but those already here for some years. I am just 
trying to get from you whether you think we should be treating 
undocumented aliens the same way as we treat Cubans and the 
same way we treat Haitians, whether we are going to be one 
country with one way of dealing with these problems or whether 
you draw a distinction. And that is the real issue. 

Governor Graham. One of the principles that I believe was criti- 
cal during the height of the situation in the midpart of 1980 and 
should continue as a fundamental principle is that we treat all 
people who come from similar backgrounds equitably. That is, we 
do not have a different policy for one nationality or another. 

The standard for eligibility for permanent residence in the 
United States should be a consistent standard applied against the 
individual circumstances of the person seeking permanent resi- 
dence, not vary from country to country. 

Senator Kennedy. So finally, whatever adjustment we made for 
the Cubans we also ought to make for the Hispanics and for the 
Haitians? 

Governor Graham. We should have a policy which treats persons 
of similar factual status similarly. 

Mr. Mazzoli. The gentleman's time has expired. 

The gentlelady from Colorado, Mrs. Schroeder, is recognized for 5 
minutes. 

Mrs. Schroeder. Thank you, Mr. Chairman. And I also apologize 
for not having been here for all of the testimony, and I appreciate 
having this panel here. 

I know the Governor has had a tremendous amount of experi- 
ence with this, and I think any light he can shed for us would 
certainly be helpful. 

It is easy to attack the Federal Government for what they did or 
did not do. But I question whether there has not been almost a 
conscious attempt by the Federal Government not to deal with the 
problem. Would you say that is true? 

There has been a tendency not to listen to what the director 
wants or to cut personnel slots at INS so that they do not have the 
people to handle the problem. We do not seem to be really focused 
on it up here. There does not seem to be any coordination with the 
State Department, from my vantage point. 

We have the awful problem of what happens if you determine 
that people are not eligible for residency here and their country 
will not take them back. What can the State Department do? It is 
easy to say we should have some bilateral agreements with Cuba, 
but I do not think we are going to have them. 

How do we get a more coordinated Federal focus? I have a 
feeling that everybody here is afraid to touch it for fear it might 
stick to them and when anything goes wrong they are going to get 
blamed for it. It is like the Postal Service reform. Nobody can 
remember who wrote that bill. 

Governor Graham. Well, in my office in Tallahassee I have a 
poster which is a quotation from the theologian Harvey Cox: "Not 
to decide is to decide." It is in fact not correct to say that we do not 
have a Federal immigration policy. We have a Federal immigration 
policy, which has all of the characteristics that you have just 
described. 



147 

The question which you have got to determine is is that accept- 
able, the continuation of the status quo, or do you want to shape a 
different option. I hope you elect to shape a different option. 

Mrs. ScHROEDER. Well, I come from a state that has seen a lot of 
the impact, as yours has, and one of the problems that we have 
discovered is that if you have good programs and work very hard to 
help the refugees, you only encourage secondary migration. Do you 
find that? 

Governor Graham. Yes. And our State is a major magnet of that 
secondary migration. There was a question asked a few minutes 
ago about what could be done to deal with that issue, and it is a 
very difficult one, because there are cultural affinities, linguistic, a 
family, that creates that magnetic pull. 

I think there are some things that can be done. One would be 
that there should be no permanent processing centers located in 
the areas that are likely to be the primary magnets for secondary 
migration. As an example of policy which violates that rule, there 
is currently in the south Dade area a processing center for Haitian 
refugees. My information is that virtually all of the refugees who 
are resettled out of that center are resettled into the Miami area, 
because that is the easiest place for that resettlement to occur. 

The consequence of that is that an already supersaturated com- 
munity is further saturated. If that processing center were located 
somewhere else, I would suggest that a substantially smaller per- 
centage of the people would be resettled in Miami. 

Mrs. Schroeder. I would not be too optimistic about that. I am 
from a State that is a little bit different, but we found that bus 
tickets are very cheap. 

Governor Graham. A second question relative to this is the issue 
of what is a family for purposes of reunification. When the waves 
began to arrive last spring, we were told that the definition of a 
family would be very tightly drawn to include spouses, children, 
mothers, and fathers. 

It is now our information that in fact families are being defined 
in a much broader context, even including a guardian status that is 
not family related, and that in part because of that the duration, 
the life expectancy of placements with supposedly reunified fami- 
lies is very short. We are experiencing a high percentage of family 
reunifications which last for 30 days or less. 

Mrs. Schroeder. I guess my time is up. 

Mr. Mazzoli. The gentlelady's time has expired. And I am afraid 
that all time has expired now for the panel. We want to thank you 
gentlemen. 

Did the gentleman have a further question? 

Mr. McCoLLUM. I did want to ask one thing. The Governor was 
not able to respond on the H-2 question of employer restrictions 
and so on. And I would appreciate it, for the benefit of our whole 
panel, and giving you time to study the problem, if you would have 
your staff research it and give us your opinion in due course on 
whether or not the State of Florida, at least from your office, 
believes that we should restrict the H-2 program further, as the 
Select Commission suggests, or perhaps we should expand it in 
light of the possibilities or probabilities of some employer sanctions 



148 

that might or might not create a demand for an increased expan- 
sion of that and the guestworker program. 

I would also, given the discretion of the Chair, like to comment 
that in a recent trip I took to California with the rest of my 
subcommittee and Mr. Mazzoli and the crew, we noted that much 
of the problems in California— and I am comparing this to Florida 
in questioning— centered on the areas of delivering English to 
these refugees out there— they were the Indochinese ones— and 
getting these skills and getting them into the job market. 

And of course, the same seems to be true to a large extent with 
the great impact of Cubans and Haitians in Florida. And it was not 
so much a lack of funding in the long term out there which was a 
problem, but really the inflexibility of the delivery systems of the 
State and local governments and the education system; not just a 
lack of coordination, but inflexibility and apparently inability to 
get the message down, the right method of teaching and so on. 

I am wondering if the Governor has noted the same problem in 
Florida and if he has any suggestions, either today or perhaps in 
writing, to us as to how we might help assist in rectifying that, 
outside of the funding problem itself. 

Governor Graham. I would like to supplement my remarks with 
a written response to both of the questions you have asked. But to 
comment on the second question briefly, the primary impact area 
in terms of education has been the Dade County school system. 
Over the past 20 years, the system has developed considerable 
expertise in English as a second language and I think has demon- 
strated a very strong capability of providing linquistic skills to the 
non-English speaking child. 

This latest group of refugee children, however, present some 
especially difficult problems because of the discriminating nature 
of some of the placements, that is, where children who were select- 
ed because they had exceptionalities, retardation or otherwise, 
were specifically placed on the boats that came. So a higher than 
expected, by a substantial number, of children with not just lin- 
guistic problems but also handicaps and learning disabilities has 
been placed into the school system, which imposes an additional 
burden on the efforts to bring these children to a point of assimila- 
tion. 

Mr. McCoLLUM. Thank you. 

Mr. Mazzoli. I thank the gentleman. And thank you, panel, very 
much. We appreciate your help. 

The second panel for this afternoon will be composed of Mr. 
Norman Kee, chairman of the Task Force on Immigration and 
Refugee Policy of the United States-Asia Institute; Ms. Althea 
Simmons, director of the Washington Office, National Association 
for the Advancement of Colored People; and Ms. Vilma Martinez, 
president and general counsel, Mexican-American Legal Defense 
and Educational Fund. 

If the panel is able to proceed on this basis, I understand that 
Senator Kennedy has a conflict. He would like to hear, if he could, 
the testimony of Ms. Martinez, and then I believe that the Senator 
has some questions, and he will have to leave. If that is all right 
with the panelists, then we will do that. 



149 

Ms. Martinez, then, if you would proceed for the 5 minutes, and 
then the Senator can proceed with his questions and then go to his 
other business. 

STATEMENT OF VILMA MARTINEZ, PRESIDENT AND GENERAL 
COUNSEL, MEXICAN AMERICAN LEGAL DEFENSE AND EDU- 
CATIONAL FUND 

Ms. Martinez. Thank you very much. 

On behalf of the Mexican American Legal Defense and Educa- 
tional Fund, the League of United Latin American Citizens, the 
National Council of La Raza, and the other Hispanic organizations 
listed here, I would like to respond to some of the Select Commis- 
sion's recommendations on immigration and I would like to make 
some alternative recommendations, because the outcome of the 
hotly debated subject of U.S. immigration policy during the 1980's 
will be critical to the civil rights of Mexican Americans and other 
Hispanics, and indeed other Americans. 

Specifically, I would like to discuss two widely debated proposals 
which purport to address the undocumented worker issue, employ- 
er sanctions and guestworker programs. The Select Commission 
voted to recommend employer sanctions, but not a guestworker 
program. MALDEF and the other Hispanic organizations oppose 
both employer sanctions and guestworker programs. We want to 
share with you our reasons and urge you to reject both proposals. 

The elusive national commitment to equal employment opportu- 
nity is a dream that is only beginning to be realized by minorities 
in many sectors of the U.S. economy. Proposed employer sanctions 
threaten that national commitment and do so in order to imple- 
ment a regulatory scheme that can neither function fairly or effec- 
tively nor accomplish its principal objective of controlling illegal 
immigration. 

For Mexican Americans and other Americans who share the 
physical characteristics of persons thought to be undocumented, 
employer sanctions will exacerbate existing patterns of employ- 
ment discrimination. Well-meaning employers, fearful of Govern- 
ment sanctions, will shy away from hiring us. Racist or biased 
employers will simply use the fear of sanctions as an excuse to 
avoid hiring us. At the very least, employers untrained in intricate 
immigration laws are unlikely to err in their assessment of who is 
undocumented. 

We also oppose guestworker programs because they are unfair to 
the workers; they erode the opportunities and status of Mexican 
Americans; and they would ultimately fail in their purpose of 
stemming the flow of undocumented workers into the country. 

In the bracero program of the 1940's to the 1960's, Mexican 
workers were abused by employers who held, by contract, entire 
control over the workers' ability to remain and work in the United 
States. Although the Mexican Government had negotiated substan- 
tial labor rights for the workers, there was virtually no attempt to 
enforce these assurances. Nor is the European experience with 
guestworker programs any more reassuring. 

MALDEF proposes instead four specific immigration policy pro- 
posals and a constructive search for solutions in a broader frame- 
work. The four specific immigration policy recommendations are: 



150 

Recognizing and expanding the traditional family reunification 
policy which underlies U.S. immigration law; 

Second, eliminating or greatly increasing the per-country limita- 
tion of 20,000 visas per year for Mexico; 

Three, adjusting the status of undocumented workers who have 
equities in our society to permanent resident alien status; and 

Four, assuring the fair and nondiscriminatory administration of 
immigration law by INS, with emphasis as well on service func- 
tions. 

In closing, I want to suggest a constructive solution to the prob- 
lems labeled "immigration problems." Although we lack much 
basic information about the undocumented population, popular 
opinion has not hesitated to scapegoat it for many of our hard 
economic and social problems. It is widely assumed, without much 
evidence, that undocumented workers displace American domestic 
workers, that they contribute to the decline of the economy, that 
they are heavy users of U.S. social services, and that they contrib- 
ute in large part to U.S. environmental and energy problems. 

But as Douglas Massey of the Office of Population Research at 
Princeton states, and I quote: 

The best evidence shows that the United States is not being inundated by an out 
of control "invasion" of illegal immigrants; nor is it likely that illegal aliens repre- 
sent a burden to taxpayers; nor is there any clear evidence to indicate that on 
balance illegal aliens displace American workers. 

The negative and emotional tenor of the current immigration 
debate is reflected in an assumption that we confront a problem 
which is out of control. This tone pervades the Select Commission's 
report and sets the national stage far narrow enforcement meas- 
ures which are doomed to failure since relying primarily on an 
enforcement solution to the problem cannot stop a phenomenon 
which is in response to powerful human, economic, and demograph- 
ic forces and cannot address a problem which transcends immigra- 
tion issues. 

But misleading public opinion and enacting policy based on that 
unfounded opinion is scapegoating, and furthermore conceals the 
hard problems and adoption of realistic remedies. We must act and 
legislate constructively, not expediently. And in acting, we must 
recognize that the solutions we seek are to be found in a frame- 
work broader than immigration. 

To the concern for more jobs and reducing unemployment, we 
say the real question is why our economy has failed to produce 
enough jobs to engage the productive capacity of our people, a 
failure caused by far more basic forces than the recent flow of 
undocumented workers to jobs shunned by domestic workers. We 
need constructive responses to the real economic problems, particu- 
larly the need to increase job creation and industrial productivity 
and to assure sufficient workers to meet labor needs and to support 
our growing retirement population. 

We need equal educational opportunities, effective prohibition of 
employment discrimination, and equal treatment of all persons by 
government. These are the basic problems, the basic goals that 
have existed since before we became concerned about immigration 
and immigration policy. They will remain with us no matter how 
we shape our immigration policy. By effectively addressing these 



151 

issues, our country can maintain a sound economic and social 
condition and put the issue of immigration into a reasoned perspec- 
tive. 

Thank you very much. 

[The prepared statement of Ms. Martinez follows:] 

Prepared Statement of Ms. Vilma S. Martinez 

My name is Vilma S. Martinez. I am President and General Counsel of the 
Mexican American Legal Defense and Educational Fund, Inc. I wish to thank the 
Committee for permitting me to testify as a representative of the Hispanic commu- 
nity on one of the most crucial issues confronting us today, U.S. immigration policy, 
and on the report of the Select Commission on Immigration and Refugee Policy. 

MALDEF has followed the work of the Select Commission since the time of its 
inception. We are a non-profit legal organization working to protect the civil rights 
of Hispanics in the United States. We are deeply concerned with debates about 
immigration and immigrant workers, in large part because the resolution of those 
debates will greatly affect the rights and aspirations of Americans of Mexican and 
other Hispanic descent. From that perspective, I offer the following comments on 
U.S. immigration policy. 

U.S. immigration policy 

/. Introduction 

A. Unjustified assumption that undermine Hispanics' civil rights. — The outcome 
of the hotly debated subject of U.S. immigration policy during the 1980's will be 
critical to the civil rights of Mexican Americans and other Hispanics. A national 
commission, the Select Commission on Immigration and Refugee Policy (SCIRP), 
recently submitted its recommendations to the President and the Congress after a 
two year study of the issues. The Commission's report fails to reflect any consensus 
on immigration issues and some of its major recommendations appear to be deliber- 
ately vague, but it is likely to intensify the debate over national immigration policy. 

The national immigration policy debate centers on the presence of an unknown 
but large number of undocumented aliens ' who are present in the United States. ^ 
The issues addressed in this debate have been fundamentally miscast, due to the 
lack of reliable information about undocumented aliens and more than a little 
prejudice against foreigners, especially those who are members of racial minorities. 
For United States policy to reach rational productive conclusions, it must first 
address the real issues in an objective manner. Widespread concern about the 
economic and social situation in the United States has been, translated — and, in the 
American tradition of scapegoating recent immigrants, manipulated— into a popular 
perception that undocumented aliens are a severe "problem" which adversely af- 
fects our country. A more productive approach, and one more consistent with the 
evidence that undocumented workers give much to our economy and take little from 
it, is to regard this immigration as a challenge to be met by measures to harness 
this human energy to the task of revitalizing our economy. In our country's history 
immigrants have been one of our greatest assets, and we must not let impulses of 
nativism and prejudice blind us to the opportunity presented to us by this genera- 
tion of immigrants. 

The negative and emotional tenor of the current immigration debate is reflected 
in an assumption that we confront a "problem" which is "out of control." This tone 
pervades the Select Commission's report. That approach will not lead us to construc- 
tive responses to the real, economic problems which our country faces, particularly 
the need to increase job creation and industrial productivity and to assure sufficient 
workers both to meet labor needs and to support our growing retirernent population. 
Moreover, that approach creates a political, social, and economic environment 
which is extremely threatening for Mexican Americans and other national origin 
minorities who may become victims of a "backlash" against new immigrants. 



' An undocumeted immigrant is an immigrant who has either entered the U.S. surreptitiously 
or has overstayed a valid visa. The term "illegal alien" is sometimes used by the public, but 
such a term is both derogatory and inaccurate, since legality of residence can only be deter- 
mined by the Immigration Service after a hearing before an immigration judge has taken place. 
Furthermore, there are many undocument immigrants who are documentable, but for the 
failure of the Immigration Service to perform i*s service functions — as opposed to its "police" 
functions — adequately. 

2 The Select Commission estimates that there are about 3.5 to 5 million undocumented 
persons in the United States, the great majority of them workers, and less than half of whom 
are of Mexican origin. 



152 

MALDEF's basic concern about U.S. immigration policy is that it often has 
serious civil rights consequences for the U.S. Hispanic population. There are 14.6 
million Hispanics in the United States living and working alongside the undocu- 
mented population. They are often indistinguishable in appearance from the undoc- 
umented. Our enjoyment of the legal and constitutional rights guaranteed to all 
Americans are to a great extent dependent on the way our legal, political, and 
social institutions react to the undocumented. For example, "Operation Wetback" in 
1954 resulted in the deportation of many U.S. citizens of Mexican ancestry as well 
as undocumented workers. Currently, workplace and residential raids conducted by 
the INS sweep citizens as well as lawfully admitted permanent resident aliens and 
the undocumented into their net, and create chaos and anger in Mexican American 
communities. Because of these policies and proposals for other enforcement meas- 
ures, immigration policy is, for Hispanics, the major civil rights issue of the 1980's. 

B. Scapegoating the undocumented.— Although we lack much basic information 
about the undocumented population, popular opinion has not hesitated to blame it 
for many of our hard economic and social problems. It is widely assumed, without 
much evidence, that undocumented workers displace American domestic workers, 
that they contribute to the decline of the U.S. economy, that they are heavy users of 
U.S. social services, that they contribute in large part to U.S. environmental and 
energy problems. These misperceptions are not only shown by recent research to be 
wrong as a matter of fact, but they are often inspired or exacerbated by racial and 
nativist prejudice against Mexican immigrants. This scapegoating is not only unfair 
to undocumented workers, but impedes the formulation of rational policy by divert- 
ing attention from the real issues. 

The truth is that immigrant workers have for generations been a boon to the 
economic development of the Southwest, and are potentially a rich source of future 
development there and across the country. Attracted by the needs of the U.S. 
economy for low-skilled (and low-paid) labor, first Asian and later Mexican workers 
have for generations been brought to the Southwest as a ready and expendable 
source of labor. Immigrant workers are a no less necessary element of our economic 
expansion today. Indeed, the intermitten labor shortage of past decades now threat- 
ens to become a permanent large-scale shortage, because of declining U.S. birth 
rates and rising levels of education and aspiration. Economists predict a domestic 
labor shortage of 15-30 million workers by the end of the century, which probably 
can only be met by foreign labor sources.^ 

Immigrant workers have economic characteristics which are highly desirable for 
the U.S. economy with its growth and productivity problems. Those workers labor 
hard, often under undesirable conditions, pay taxes to local, state, and federal 
governments, are young, and rarely use social services. In the face of these facts, the 
propensity to scapegoat undocumented workers for our country's difficult economic 
and environmental problems must be ascribed to the vulnerable position of undocu- 
mented workers, the economic ills confronting our nation, and longstariding strains 
of nativism and racism in our society. Undocumented workers provide a highly 
visible, deceptively simple target for most Americans, they do not "look like us' , 
and they seem understandable, unlike the frustratingly complex economic forces 
which we have been unable to control or even comprehend. We can succeed in 
inflaming opinion against undocumented workers because they are (incorrectly) 
seen as mostly Mexicans, because they are a powerless and voiceless minority 
without legal protections, because they have no access to opinion makers or political 
leaders, and because the public has been kept ignorant of the workers' contribution 
to the American economy. But misleading public opinion and enacting policy based 
on that unfounded opinion will only conceal the hard problems and further post- 
pone adoption of realistic remedies. We must act — and legislate — constructively, not 
expediently. 

//. Critique of discriminatory and unworkable proposals to "control" immigration 
Among the wide range of immigration policy proposals advanced for discussion,'' 
the most seriously considered and widely debated are two programs which purport 
to address the undocumented worker issue — employer sanctions and "guest worker" 
programs. Both proposals are seen as ways to limit the number of immigrant 
workers and restrict the terms and conditions under they may work. Both proposals 



I 



=> Projections of U.S. labor supply for the 1980's and 1990's show that U.S. businesses which 
now employ young low-skilled males are likely to be faced with shortages of workers by the mid- 
1980s, and that this condition of labor scarcity will persist for the remainder of this century and 
beyond, due to the depressed birth rate and rising educational and aspirational levels among the 
U.S. population. The United States may need as many as 15-30 million immigrant workers in 
its labor force by the year 2000, if the U.S. economy is to continue to grow at even a moderate 
rate. 

••Proposals range from an "open borders" policy welcoming all immigrants to a complete cut- 
off of many categories of immigration, and every point in between. 



153 

raise subsidiary issues of enforcement techniques and implementation procedures; 
these issues also receive wide attention. Critical, realistic scrutiny of these two 
proposals has been largely lost in a debate that has been heavily emotional. We 
believe that under such scrutiny both employer sanctions and proposed guest 
worker programs must be rejected as both discriminatory and unworkable. 

A. Employer sanctions.— The elusive national commitment to equal employment 
opportunity is a dream that is only beginning to be realized by minorities in many 
sectors of the U.S. economy. Proposed employer sanctions programs would threaten 
that national commitment and would do so in order to implement a regulatory 
scheme that cannot function fairly or effectively and will not accomplish its princi- 
pal objective of controlling illegal immigration. Under an employer sanctions 
scheme, discrimination against Mexican Americans and other minorities would be 
increased, and no other legitimate policy objectives would be attained. 

The Select Commission has recommended that it be made unlawful for employers 
to hire undocumented workers, and that employers be given the obligation to 
determine the status of potential workers. Necessarily, enforcement of this scheme 
requires use of some form of "secure identification" for employers to demand and 
rely on, which the Commission also recommended by a closely divided vote, and 
some federal review and regulation of enforcement efforts. This program and its 
variants should be rejected because each of its elements— deputizing employers as 
immigration law enforcement agencies; creation, use and control of identification 
documents; and a regulatory federal enforcement scheme— will trigger discrimina- 
tion and will prove burdensome and unworkable. 

For Mexican Americans and other Americans who share the physical characteris- 
tics of persons thought to constitute the bulk of the undocumented population, 
employer sanctions will undoubtedly exacerbate existing patterns of employment 
discrimination.^ Well-meaning employers, fearful of government sanctions, will shy 
away from hiring individuals who appear "foreign". Racist or biased employers will 
simply use the "fear" of sanctions as an excuse to avoid hiring qualified minorities. 
At the very least, employers untrained and inexperienced in the intricate immigra- 
tion laws are likely to err in their assessment of who is undocumented.^^ 

Minorities will not be protected from discrimination by a national identification 
card supposed to be required of every job applicant. Because of the perceived 
"foreign appearance of national origin minority workers, potential employers and 
government officials are most likely to ask them to produce the identification card 
and to blink at the purported requirement in the case of non-minority applicants. 
Likewise, burdens and errors in the issuance of the card and its administration— for 
example, in the requirement of proof of birth or legal immigration status— will 
disproportionately fall upon these minorities. The U.S. worker who is inconven- 
ienced by having to apply for, carry, and produce an identity card is likely to 
respond with hostility toward the "foreign looking". 

Furthermore, we have serious civil liberties objections to a national identity card. 
Such an identification system is likely to be used for purposes other than work- 
status identification, rendering it a ready vehicle for the abuse of confidential 
information. Financial, medical, and a host of other records which might be keyed 
to a national identification number would be readily available to anyone with access 
to that number and the appropriate computer technology. Illegal activity of police 
officers in attempting to enforce the federal immigration laws will be facilitated by 
the national identity card system; such police officers could then require Hispanic- 
looking citizens to produce the card to prove the legality of their presence in the 
United States. Finally, the card system is unenforceable; the methods proposed for 
making the cards "forge-proof are easily evaded.^ 

Employer sanctions require the private sector to become the enforcer of federal 
immigration laws. Private employers will be forced into a law enforcement function 
that they are unwilling and incapable of carrying out. Even if employers could 
always make accurate determinations, the burden of doing so would be a crushing 
addition to their already heavy burden of personnel-related obligations to govern- 
ment. In handling large numbers of employees, apparently innocent mistakes will 
result in discrimination against potential employees, exposing employers to an 
additional source of potential liability. Moreover, the delegation to employers of 
authority to make immigration-status determinations is of highly questionable legal- 
ity. The federal government has the exclusive responsibility to make and enforce 



^Although Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e, prohibits discrimination 
on the basis of national origin, equal opportunities remain an elusive goal, and discrimination 
persists. 

'*A research study entitled "Employer Sanctions", prepared for the Select Commission by the 
Center for Study of Human Rights at Notre Dame University Law School (fall 1980) points out 
the many ways in which employer sanctions could increase discrimination. 

®A "forge-proof card would be issued on the basis of other documentation — such as social 
security cards, birth or baptismal certificates, or immigration documents — presented by the card 
applicant. There is already a large commerce in effectively forged or illegally transferred 
documents of these types. 

83-514 0-81-11 



154 

our immigration laws and to regulate the status of aliens within our borders. It 
cannot abdicate that responsibility, particularly in light of the knowledge that 
private enforcement would cause discrimination in which the government, by the 
act of delegation, would have complicity. 

Adoption of employer sanctions will require the creation of a new agency or the 
expansion of an existing agency to ensure their enforcement. This agency is likely 
to add to the regulatory burdens already borne by the private sector and ultimately 
contribute to the inflationary spiral by creating a burdensome superstructure which 
will, inefficiently, try to regulate the supply and demand of labor by law. 

Employer sanctions could not be adequately enforced. Such enforcement would 
require a massive commitment of federal resources, particularly since most undocu- 
mented workers are employed by relatively small industrial firms and service 
companies. The traditional low priority accorded immigration enforcement within 
the Department of Justice and the more recent emphasis upon frugality which has 
characterized the federal sector militate against any such commitment. To the 
contrary, the resources devoted to the enforcement of employer sanctions are likely 
to be minimal, as are the resources devoted to other federal labor-regulation laws. 

Employer sanctions would not effectively curtail illegal immigration. The minimal 
legal and financial risk to employers who desire to exploit undocumented labor is 
insufficient to overcome the powerful human and economic forces which underlie 
the undocumented worker migration. The small fine proposed for an employer who 
knowingly hires undocumented workers does not seriously undermine the economic 
advantage of undocumented workers, since a more competitive market wage rate 
would be necessary to attract domestic workers. Moreover, given the lack of an 
extensive enforcement effort, an employer runs a negligible risk of being caught. In 
the eleven states which have enacted employer sanction laws, the GAO found only 
one judgment against an employer, resulting in a fine of $250.^ Rather than forego 
the benefits of hiring undocumented workers, employers who seek this type of work 
force will in all likelihood successfully evade the law. Employer sanctions legislation 
would not make undocumented employment less widespread, but would make its 
conditions more exploitative. The farther a labor market moves away from legal 
regulation and open public transactions, the greater the degree of job abuses that 
may be expected, and the less chance that such abuses will be reported. 

There is no substantial evidence to support the presumption that undocumented 
workers take jobs away from citizens and that employer sanctions will significantly 
open up jobs for unemployed U.S. workers. On the contrary, several studies have 
demonstrated that most of the jobs held by undocumented immigrants are so 
undesirable and low-paying that domestic workers will not take them even when 
they are available. For example, in San Diego in 1977, the California State Human 
Resources Development Agency tried unsuccessfully to get local citizens to fill jobs 
left vacant by the apprehension of 2,154 undocumented immigrants. In the absence 
of proof that "displacement" occurs, it is both presumptuous and economically risky 
to assume that the need fulfilled by undocumented workers can be equally well met 
by the domestic workforce. 

On the contrary, if employer sanctions could be effectively enforced they might 
well have a negative effect on our economy and particularly on job creation. With- 
out a supply of cheap labor provided by undocumented workers. Low-wage manufac- 
turing concerns would become more vulnerable to international competition. This 
would increase the trend for such concerns to relocate aboard in low-wage countries. 
Such has already been the case in the agricultural, garment, textile, and electronic 
assembly industries."^ Plant relocations would of course take employment away 
from domestic workers who work in higher-paid jobs in the same industry, as well 
as displace workers of suppliers and other related businesses. 

In sum, while there is no reason to believe that employer sanctions would accom- 
plish any valid policy end, it is clear that they would result in creation of an 
additional regulatory burden to employers and would result in discrimination 
against Mexican American citizens and legal residents. 

B. "Guest" worker programs. — The concept of "guest" worker programs includes a 
variety of plans to import foreign workers into the United States on a temporary 
basis for the purpose of work. Specific proposals range from updated versions of the 
"bracero" program for contract labor to the issuance of temporary entry and work 
p)ermits for all who request them. Under all these proposals, the foreign workers 
receive only minimal legal protections and no right to establish permanent resi- 
dence in the United States, and are limited in the location, type, or length of 



'General Accounting Office, Report to Congress by the Comptroller General, "Prospects Dim 
for Effectively Immigration Laws" (Nov. 5, 1980), p. 8. 
'* Wayne A. Cornelius, supra, p. 67. 



155 

employment they may obtain. Most of the proposals also feature some mechanism 
for determination and control over work opportunities by the federal government. 
After extensive debate, the Select Commission did not directly address these issues, 
but suggested minor modifications and a possible "slight" expansion of the existing 
H-2 program. 

We have fundamental objections to all of the proposed "guest" worker programs. 
In attempting to provide a temporary workforce whose employment is monitored 
and adjusted by federal regulation, the proposals take an excessively narrow ap- 
proach, and one which poorly serves other important policy goals. For the United 
States to take full advantage of the opportunity to revitalize our workforce, full 
rights and access to permanent legal residence status should be accorded to immi- 
grant workers. None of the proposals adequately safeguards the right of foreign 
workers to fair treatment or prevents the erosion of the civil rights of Mexican 
Americans which a large-scale guest worker program would trigger. All the propos- 
als would require creation of a cumbersome regulatory mechanism. Moreover, guest 
worker programs simply will not work: they will not stop or diminish the flow of 
undocumented aliens and will not provide a superior mechanism for meeting our 
labor needs. 

Historical experience with guest worker programs as well as current practice 
indicates that such programs are designed or used in ways that are inherently 
unfair to the workers. Before such programs were institutionalized, Mexican work- 
ers were imported and summarily expelled as dictated by labor needs, often with 
attendant hardship to the workers and their families.^ In the bracero program of 
the 1940's to early 1960's, Mexican workers were abused by employers who held, by 
contract, entire control over the workers' ability to remain and work in the United 
States. Although the Mexican government had negotiated substantial labor rights 
for the workers, there was virtually no attempt to enforce these assurances; grossly 
sub-standard pay and work conditions resulted.® Growers also manipulated the 
bracero program to keep unions from organizing agricultural workers. '° Only a 
small number of Mexican workers have been involved in the H-2 program of recent 
years, but the abuses suffered by non-white workers from Carribbean countries 
provide an ominous preview of employer practices that could accompany any ex- 
panded guest worker program. ' > The legal rights of aliens in our country are so 
narrowly circumscribed that there is no effective quarantee of fair treatment availa- 
ble to the workers. '2 Nor is the European experience with guest worker programs 
any more reassuring. It appears to be universally true that migrants who are 
brought to a country on a temporary basis with limited employment rights and 
legal status are ill treated by the host country and its citizens. 

The subjection of foreign guest workers to exploitative working conditions is not 
merely unfair to them, but will also erode the opportunities and status of Mexican 
Americans. Attitudes that allow employers and the public at large to view tempo- 
rary workers from Mexico as expendable commodities to be used and discarded at 
will inevitably affect Mexican Americans to our detriment. In 1954, when the 
massive "Operation Wetback" was decreed to remove braceros from an economy 
that temporarily had no need for them, numerous Mexican American citizens were 
summarily deported from the United States. * ^ Even today it is common for employ- 



*H. Kiser, "Mixican American Labor Force Before World War II," Journal of Mexican 
American History, vol. 2 (1972). 

3 Julian Zamora, "Los Mojados: The Wetback Story" (Notre Dame University Press, 1971); 
Ernesto Galarza, "Merchants of Labor," supra. 

'"Wayne A. Cornelius, supra, p. 72; Ernesto Galarza, "Merchants of Labor: An Account of the 
Managed Migration of Mexican Farmworkers in California, 1942-64" (1964). 

"H-2 workers have been effectively deported by their employers for protesting harsh work 
conditions, have been pushed to work very long hours at a debilitating pace, have been denied 
agree-upon wages through munipulation of workers charges and pay formulas, and have been 
subjected to squalid living conditions. See, "Analysis of H-2 Program and Request for Rulemak- 
ing and Other Relief," filed before Secretary of Labor in re: Temporary Labor Certification 
Process for Agricultural Workers, by National Association of Farmworker Organizations (1978). 

'2 Aliens, even those who are lawful permanent residents, are not adequately protected by 
federal civil rights statutes. Private citizens' conspiracies against aliens are not covered by 
federal law (18 U.S.C. §241); organizations like the Ku Klux Klan can terrorize aliens without 
being subjected to federal criminal prosecution for civil rights violations. Although federal 
employment discrimination law prohibits national origin discrimination, 42 U.S.C §2000e-2(a), 
the Supreme Court has ruled that discrimination based on alienage is not covered by this 
provision, Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). That reasoning calls into question the 
protection afforded even lawful resident aliens by federal civil rights legislation in the areas of 
housing, education, municipal services, and public accommodations. 

■^This procedure was only the most recent and best documented of a series of similar 
removals, over a period of decades. See, Wayne A. Cornelius, "Mexican Migration to the United 
States: Causes, Consequences, and U.S. Responses" (Cambridge, 1978), pp. 15-16. 



156 

er attitudes toward and treatment of Mexican American workers to incorporate 
stereotypes based on derogatory views of temporary Mexican workers whose legal 
and economic rights are minimal. j <• 

The creation of a temporary worker program to meet the projected labor needs ot 
this country will create a massive federal bureaucracy but will not assure that labor 
needs are actually satisfied. Any proposed guest worker plan to meet projected labor 
needs will require the creation of a superagency to coordinate and admmister the 
program. At a minimum, new responsibilities (budget and positions) will be thrust 
upon the Departments of State, Justice, Labor, Commerce, Agriculture and Treas- 
ury. If there is a guest worker program, the National Labor Relations Board, the 
Equal Employment Opportunity Commission and other federal agencies will have to 
be authorized, budgeted and staffed at a higher level to carry out their expanded 
functions of providing protection for temporary workers. It is doubtful, however, 
that all these agencies could accurately and timely assess the precise needs for 
wokers in particular jobs and locations, or that these agency functions would receive 
adequate funds to do that job. . i • ^ 

A guest worker program would not stem the flow of undocumented workers into 
the country. While such a program might temporarily legalize and identify a seg- 
ment of the immigrant worker population, it would ultimately increase the number 
of workers who enter or remain in the country illegally. Historically, guest worker 
programs in both the United States and Europe have had this effect, as guest 
workers overstay their temporary visas, return illegally to places and jobs with 
which they became acquainted while temporarily admitted, and opt for the freer 
albeit riskier status of uncontrolled entry, employment, and residence.''' 

The expedient adoption of a massive temporary worker program would create 
many problems and would not resolve the "problem" it purports to address— that of 
eliminating undocumented workers while providing for necessary foreign labor in 
our work force. A more effective and fairer program would seek to incorporate those 
persons whose energy and skill we need into our society. Such a program would 
keep their skills, earnings, and savings here, rather than returning them to foreign 
countries at regular intervals. Workers who over a period of time staff our indus- 
tries, pay taxes, and contribute to our economic welfare should receive the social 
and economic benefits accorded to U.S. residents. They should be given an opportu- 
nity to remain here and to become legal permanent residents and, eventually, 
citizens. What we suggest is simply a permanent upgrading of our workforce, in 
response to economic needs, instead of resort to ineffectual temporary measures 
which will undermine the status of Mexican Americans and other minorities. 

///. Recommendations for immigration and other related policies 

A. The context of immigration policy making.— The formulation of U.S. immigra- 
tion policy is an intricate task requiring the delicate balancing of a wide range of 
foreign and domestic policies. U.S. trade policy, our national security and energy 
policies, our relations with developing countries, the domestic economy, and the 
civil rights of American citizens are all inextricably linked to U.S. immigration 
policy. Likewise, the economic and demographic phenomena which must be consid- 
ered in the formulation of U.S. immigration policy are varied and complex. For 
example, the significant presence of undocumented workers of Mexican origin is 
affected by the following factors: on the U.S. side, our need for labor, the insuffi- 
cient supply of workers to support our "graying" population, stagnant productivity, 
the causes of persistent unemployment, our need for ample and secure energy 
resources, and concern for the political stability and orientation of neighboring 
countries; on the Mexican side, economic underdevelopment and the need for tech- 
nology and investment capital, the population explosion, and treatment of Mexican 
nationals within the United States; on a bilateral level, trade restrictions and 
markets, energy development policy, and response to political instability in the 
Caribbean basin. We cannot make immigration policy in a vacuum, but must 
consider its impact on all these other issues. We must also remember that while of 
course we make U.S. policy based on U.S. interests, our national interest also 
requires sympathetic attention to the problems of Mexico, which is not only a 
neighbor of growing influence in the hemisphere and on the international scene, but 
also holds the key to energy and human resources which may become indispensable 
to our own national development. U.S. policy toward Mexico is, in the long run, as 
critical to our national security as is our policy toward the Middle East. 

Our recommendations with regard to many matters commonly but imprecisely 
thought to be questions of immigration policy require that those matters be seen for 
what they are, not as immigration issues. To the concern for more jobs and reducing 



'■•Miller and Yeres, "A Massive Temporary Worker Program for the United States: Solution 
or Mirage?" International Labor Organization (Geneva. 1979). 



157 

unemployment, we say: the real question is why our economy has failed to produce 
enough jobs to engage the productive capacity of our people, a failure which is 
caused by far more basic forces than the recent flow of undocumented workers to 
jobs shunned by the domestic workforce. To the concern over funding of public 
services, we say: assure adequate funding by incorporating this dynamic, productive 
segment of industry and the workforce into our permanent tax base. We invest 
wisely in our future by providing educational and public health services for all 
members of our society, and merely defer heavy financial and social liabilities when 
we deny such opportunities while blaming immigrants for their cost. 

B. Specific immigration policy recommendations.— The research and experience 
necessary to guide the formulation of the immigration component of such important 
policy packages has not been completed or analyzed. Critical knowledge gaps dimin- 
ish our ability to legislate or set policy with any clear understanding of either our 
needs or the consequences of policy alternatives. ' ^ In this situation, hastily enacted 
policy decisions would be speculative and potentially counter-productive. The neces- 
sary research should be carried out in an objective and comprehensive manner, as 
expeditiously as possible, to provide a firm foundation for proper action. 

Even now, however, the outlines of a fair and effective immigration policy are 
visible. Immigration policy should provide opportunities for persons who over a 
period of time work in our industries, pay taxes, and contribute to our economic 
welfare, or who are immediate relatives of U.S. citizens and permanent residents, to 
receive the social and economic benefits accorded to U.S. residents. This should be 
accomplished in four ways: 

(1) By recognizing and expanding the traditional family reunification policy which 
underlies U.S. immigration law. 

(2) By eliminating or greatly increasing the per-country limitation of 20,000 visas 
per year for Mexico. 

(3) By adjusting the status of undocumented workers who have equities in our 
society to permanent resident alien status. 

(4) By assuring the fair and nondiscriminatory administration of immigration law 
by INS, with emphases on service function. 

1. FAMILY REUNIFICATION 

Family reunification has for several decades been an underlying theme of Ameri- 
can immigration policy. Family reunification is favored so that U.S. citizens and 
permanent residents need not exile themselves in order to be with members of their 
families. Under this policy, immediate family members are given preference for 
immigrant visas, by exemption from numerical limitations (in the case of spouses, 
minor children, and parents of adult citizens) or by reservation of a fixed number of 
visas for other close family members. While this policy is both humane and prudent 
in knitting the fabric of a stable, orderly society, the supposed advantage for 
relatives not exempt from visa allotment limitations is rendered somewhat illusory 
by those quotas. 

The Select Commission endorsed the family reunification policy and recommends 
that it play "a major and important role in U.S. immigration policy." While we 
emphatically agree, we must point out that in the case of the country whose 
nationals need and want to immigrate in greatest number, the policy choice is 
illusory unless it is implemented by changes in numerical limitations. 

2. VISA UMITATIONS 

As recently as 1976, there was no fixed limitation on the number of immigrant 
visas issued to nationals of Western Hemisphere countries, and Mexican citizens 
obtained 40,000-50,000 such visas each year. The existing per-country limitation of 
20,000 visas creates a hardship on Mexicans attempting to enter the United States 
legally. There is currently a five year backlog for spouses and children of perma- 
nent resident aliens from Mexico, and long waits for siblings and other close 
relatives. This is unfair since there are many countries, mostly developed countries 
whose citizens are not desirous of entering the United States, where there is no 
waiting period for visas. Legal backlogs which are perceived as hopelessly long 
encourage illegal immigration outside the wait-list visa system. A more equitable 
approach would be to allocate visas to each country from the total number of visas 



'* Robert G. Cox, in his published lecture "Planning for Immigration: A Business Prospec- 
tive", points out that we have inadequate data on immigration. He also points out that the 
Select Commission itself characterizes available information as "fragmentary." One example of 
the type of crucial information which is missing is the extent to which undocumented workers 
contribute to the national economy, and whether they significantly draw upon public services. 



158 

available in proportion to the number of visas applicants from a particular country 
in the entire pool of available visas. For example, if there are 100,000 visas availa- 
ble, and 40 percent of all applicants were from Mexico, then Mexico would receive 
40,000 visas that year. An alternative approach, which has gained considerable 
support in recent years, would recognize our special relationship with our neighbors 
by exempting Mexico and Canada from per-country limitations or granting them a 
separate, enlarged allotment of visas. 

The Select Commission's recommendations would alleviate the unfairness and 
hardship of the present visa allotment system for Mexican applicants in only minor 
respects, by slightly expanding the number of family-member entrants whose visas 
would be exempt from the 20.000 visa limitation. The modest temporary increase in 
worldwide visa allotments proposed bv the Commission will not reduce the Mexican 
backlog as long as the per-country limitation remains unchanged. We are disap- 
pointed that the Select Commission did not recommend an increase in that quota, as 
is necessary to effectuate its family reunification position. 

3. ADJUSTMENT OF STATUS 

MALDEF advocates that an opportunity to become legal resident aliens and, 
eventually, citizens, be given to most persons who have resided and worked in or 
otherwise established ties with our society. Such opportunity should be extended to 
all those who entered the United States prior to some fairly recent date— for 
example. January 1, 1980— and have remained here in a socially or economically 
productive capacity. All persons who participate successfully in the program should 
become permanent resident aliens. The opportunity should be well publicized and 
should truly encourage all eligible undocumented persons to come forward. 

The Select Commission recommended adoption of a "legalization" program in the 
most general terms, without providing detail to make its proposal comprehensible. 
But from the information provided, it is apparent that the Select Commission 
approach to "legalization" has two fatal flaws. It does not recommend commencing 
an amnesty program until all enforcement mechanisms (e.g., employer sanctions, 
increased police activity by INS) have been instituted; and it offers deportation as 
the "solution" to those who voluntarily come forward and fail to qualify for the 
legalization program. The first flaw is obvious: it creates a Catch-22 situation in 
which there will be a massive crackdown on the undocumented population, with 
many deportations, followed by a "lenient" legalization program. Then if the undo- 
cumented participate in the program, they may still be subject to deportation if 
they fail to qualify because of the continuous residency requirement. MALDEF 
recommends that any adjustment of status precede the enforcement crackdown. An 
effective adjustment program cannot succeed in a period of vigorous interior en- 
forcement. Furthermore, those who fail to qualify for permanent residence should 
be offered temporary status with the opportunity after one year to qualify for 
permanent residency based on a good work record and payment of taxes. 

This step — adjustment of status of the qualified undocumented population — will 
not meet all our projected labor needs since the undocumented workers are already 
present in the U.S. labor market. But it will improve their working conditions, legal 
status, and eventual political participation. Their equities are great: they have been 
attracted here by the economic necessities of our country, have contributed their 
labor, paid their taxes, and have significant community ties. The alternatives — to 
relegate them to a permanent underclass or to deport them — are unacceptable to 
MALDEF and the Hispanic community, and would result in our country forfeiting a 
potentially great human resource. 

4. NONDISCRIMINATORY LAW ENFORCEMENT AND SERVICE FUNCTIONS 

It is vitally important to the well-being of the country as a whole, as well as to 
Mexican Americans and other minorities, that we foster respect for the law and 
non-discriminatory application of the laws. Unfortunately, this country has often 
broken its promise of equality.'^ Our federal immigration laws have been sporadi- 
cally enforced — and when they have, they are enforced in a discriminatory manner. 
Ninety percent of INS resources are directed at Mexican entrants — who make up 
less than half of the undocumented population. The Mexican American community 



"* Federal civil rights laws have not been enforced vigorously: this has led to cynicism and 
lack of respect for law in many sectors of the minority community. Federal wage and hour laws, 
the Federal Fair Labor Standards Act, the Occupational Safety and Health Act — laws that 
govern working conditions and protect workers who lack personal economic bai^aining power — 
nave not been adequately enforced, these violations have bred contempt and disrespect for the 
law among those who work in the secondary labor market and are subject to such conditions. 



159 

perceives that this is because there is little concern about undocumented persons 
from developed countries who enter illegally or overstay their visas. Racism appears 
to be a strong factor in this disparity of concerns. INS agents who participate in 
"area control" operations directed at workplace or residences (not identified idivi- 
duals), arbitrarily stop for questioning persons who "look foreign", including many 
U.S. citizens and legal residents of Mexican, Hispanic, or Asian origin. State and 
local police officials, who have no legal authority to enforce federal immigration 
laws, take extraordinary liberties in violating the rights of national origin minor- 
ities who "look foreign". Frequently the police attitude that undocumented persons 
have no rights translates into unnecessarily rough treatment or even physical 
assault, and citizens and permanent resident aliens have been injured in such 
incidents. The effect of all these activities on public opinion is to stigmatize undocu- 
mented persons, and by association Mexican Americans, as les than fully human 
and not entitled to equal rights or any rights. 

The Select Commission's report is permeated by a belief that draconian police 
measures can "control" undocumented aliens. It suggests increased interior and 
border enforcement, and calls for more hardware and personnel for the Border 
Patrol. Such measures can only make the revolving door of Mexican immigration 
turn more quickly, but cannot stop a phenomenon which is in response to powerful 
human, economic, and demographic forces. 

We must reverse this orientation and counteract its harmful effects. The commit- 
ment to equal justice will more than make up, in benefits for domestic order and 
civil rights, for the loss of an illusory "efficiency" in apprehensions. Federal, state, 
and local law enforcement officers should be instructed and required to observe 
constitutional and legal limitations on their activities. "Law enforcement" also 
means more than sealing the border or raids on suspected alien centers. It should 
include more vigorous and effective monitoring and enforcement of labor laws, such 
as minimum wage, unemployment insurance, and occupational health and safety, 
that employers often seek to violate by hiring undocumented aliens to work in 
substandard conditions. Assuring that employers comply with minimum standards 
legislation will eliminate incentives to hire the undocumented which are illegally 
inspired. 

The "service" function of the Immigration and Naturalization Service is less 
adequately staffed and funded each year, as the government's emphasis changes 
from service to discriminatory enforcement. The service aspect of INS should be 
competently and adequately staffed. The management of INS needs to be brought 
out of the 19th century and be given automatic data processing capability to permit 
those nominally in charge to manage the bureaucracy and the work-flow of service 
cases, applications, and petitions. Huge backlogs and long waits which now confront 
applicants for entry, certification, adjustment of status, or naturalization, and which 
may discourage or deter persons from following legal procedures, should be elimi- 
nated. 

Only when the law is enforced even-handedly, and when INS recognizes its 
service function as having at least equal importance to its enforcement function, 
will immigration laws be respected and effective in this country. 

C. Other policy recommendations. — Our immigration policy must be coordinated 
with all other related policies — trade, energy, foreign, and domestic. The goals of all 
those policies should be to enhance American economic development, social welfare 
and civil rights, and national security, and to ensure a stable, developed, democratic 
and non-totalitarian nation on our southern as well as northern border. We must 
realistically address such difficult issues as improving opportunities for American 
minorities with the realization that immigration policy will not provide a "quick 
fix" for any of these intractable problems. Indeed, sound and successful policies that 
resolve our real economic problems will alleviate much of the perceived "problem" 
of undocumented workers which fuels the current immigration debate. Likewise, 
immigration policy cannot bring about necessary development of labor-intensive 
industries in those parts of Mexico which have the most severe job shortages and 
now export their excess workers. A combination of trade, investment, and technical 
assistance must complement immigration policies to accomplish this long-term de- 
velopment, which would deal with the underlying sources of the Mexican migrant 
flow. 

It would be beyond the scope of this testimony to suggest in any detail what other 
policies, outside the immigration area, should be followed in lieu of the ill-advised 
employer sanctions and guest worker programs and in addition to the positive 
immigration proposals set out above. But these other policy goals may be briefly 
indicated. They are not new, but they are hard and they are important. They 
include provision of equal educational opportunities, growth in jobs and productiv- 



160 

ity, effective prohibition of employment discrimination, equal treatment of all per- 
sons by government. They are the basic problems and the basic goals that have 
existed since before we became concerned about immigration "problems" and immi- 
gration policy goals, and they will remain with us no matter how we shape our 
immigration policy. By effectively addressing these issues, our country can maintain 
a sound economic and social condition. Without meeting our most basic national 
challenges head-on, we can accomplish little by a narrow focus on immigration 
policy. 

Mr. Mazzoli. Thank you, Ms. Martinez. 

By the agreement, the Senator from Massachusetts is recognized 
for 5 minutes. 

Senator Kennedy. Thank you very much. 

I want to welcome all of the panel here and indicate that I will 
look forward to reading their testimony in its entirety. 

The Select Commission itself recommended, as I understand it, at 
least three of your four observations and recommendations. I am 
basically in support of all four of them. I have introduced legisla- 
tion to increase the numbers for Mexico, and we passed it out of 
the Judiciary Committee last year — to facilitate the reunification 
of families from Mexico. I think the waiting time now is probably 7 
to 9 years with respect to some children and wives of permanent 
resident aliens, is that right? 

Ms. Martinez. That is right. 

Senator Kennedy. And that is something that certainly should 
be addressed. And the adjustment of status of undocumented aliens 
is something that we have done for other nationalities at other 
times, and certainly I think that it is something that hopefully we 
will do in the fair administration of any new law. 

But if we could just address the issue that has been the most 
difficult for you and me, and that is the issue of employer sanc- 
tions. I do not think there is any question that discrimination on 
the basis of race continues to exist in our society among some 
employers. I suppose the real question is, if there is some kind of 
readily identifiable system such as a social security card, whether 
you cannot make further progress toward eliminating discrimina- 
tion. 

I am just interested in hearing you out on this. This is obviously 
a matter on which the Select Commission spent a great deal of 
time. And I think that many of us have seen, as I am sure you 
have, the extraordinary exploitation of undocumented workers in 
the past. It is continuing today. The real question is, as you know, 
whether there is a greater chance of discrimination by just con- 
tinuing a nonsystem now, where there is exploitation of undocu- 
mented aliens or whether with sanctions and use of a social secu- 
rity card and the opportunity to enforce antidiscriminatory laws 
that exist on the books it might be helpful. Granted, in many 
instances these laws are not being enforced at the present time, 
but if you could just comment on this. 

Ms. Martinez. I want to state for the record, I know that you 
know this. We have thought long and hard about these issues. We 
would like to help you help us find solutions to them. But very 
frankly, we have not found them. We have not yet seen a scheme 



161 

of employer sanctions with any kind of ID card which we feel 
would not result in additional discrimination. 

I was here yesterday, and I have for a long time been led by 
Father Ted Hesburgh. But I disagree with him on this issue. And I 
heard him tell the panel yesterday that he proudly carries three 
pieces of identification that had his picture on it. One of them is to 
go into the Chase Manhattan Bank, because he is on the board. 

And I thought about that and reflected some, and I said to 
myself: Well, I carry some attractive identification too, but the real 
problem comes into the situation where the government forces an 
additional badge not of achievement on you, but a badge of inferi- 
ority. And my fear is that employer sanctions with those cards will 
become a badge of inferiority for Mexican Americans and other 
"foreign looking Americans." And my fear is based on my experi- 
ence. 

As a lawyer, I have tremendous respect for the law. I know that 
lawfully local police officers are not supposed to enforce the immi- 
gration law. I know as a practical matter they violate that all the 
time and I am forced to show them my identification. I think this 
card will only add to that, even if you were to write some safe- 
guards into the law. 

Those are my concerns. 

Senator Kennedy. The Select Commission discussed at some 
length the question of requiring of a special new employee identifi- 
cation card. That was one of the issues that came up, and the panel 
was divided on it. I voted in opposition to it. 

The real question is whether you could use existing identification 
procedures, such as the social security card, for example, and not 
establishing a whole new system. Would you draw any distinction 
between that and the other? 

Ms. Martinez. No. My fear is that it would have the same end 
result. The end result is that there would be some way that it 
would be utilized as a badge of inferiority against Mexican Ameri- 
cans and other foreign-looking Americans. 

To the extent that people such as yourselves worry about exploi- 
tation of the undocumented or discrimination against Mexican 
Americans, I say to you we have laws on the books prohibiting 
discrimination, prohibiting exploitation, through OSHA, through 
the Fair Labor Standards Act. And I think that is where those 
rehabilitative efforts ought to be placed. 

Mr. Mazzoli. The gentleman's time has expired. 

We will proceed with the remainder of the panel: Ms. Simmons 
and then Mr. Kee, and then we will have questions. 

STATEMENT OF ALTHEA T. L. SIMMONS, DIRECTOR OF THE 
WASHINGTON BUREAU OF THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE 

Ms. Simmons. Mr. Chairman and members of the subcommittees: 
I am Althea T. L. Simmons, director of the Washington bureau of 
the NAACP. Thank you so much for allowing us to come and 
testify. 

The NAACP has been a leading opponent of racial discrimina- 
tion since its founding 72 years ago, and we testify here today on 



162 

the question of immigration policy, a matter which I am sorry to 
say, relates at least in part to the question of racial discrimination. 

Before further elaborating on that point, I will outline our gener- 
al position on immigration. We are committed, as an organization, 
to working for the removal of all barriers of racial discrimination 
through democratic processes. We also identify with disadvantaged 
persons of all races, colors, and creeds. We believe that there is a 
need for a pluralistic society, and for those reasons we believe that 
immigration is now and has been good for America and that immi- 
gration should continue. 

In addition to the legal immigrants in this Nation, there are 
three other groups of aliens in the country I want to talk about. 
There are the political refugees, the people fleeing oppression. 
There are the nonimmigrants, those who have been admitted legal- 
ly on a temporary basis to perform a particular role in our society. 
Then there are the undocumented workers who are here in viola- 
tion of our immigration laws. 

Refugees have generally been welcome to enter our shores, as we 
attest to on the Statue of Liberty, calling for welcome to the tired 
and the poor. But the NAACP has found out over the years that 
there is discrimination in the way we let people come into this 
country. 

In researching our policy positions, I looked back as early as 1953 
and saw policy positions calling for revision of the McCarran- 
Walter Act because that act discriminated against people of color 
by virtually eliminating immigration from the Caribbean countries. 
It also discriminated against persons of Oriental origin. 

The NAACP is concerned that a distinction is made regarding 
one group of political refugees, those from Haiti, who are fleeing 
from conditions as harsh as those in Vietnam, and yet they have 
not been defined as political refugees by the Immigration and 
Naturalization Service. I recall last year talking to someone from 
the State Department and I was told that it is done on a case-by- 
case basis. We do know that our country accepts refugees from 
Indochina, from Cuba, Afghanistan, and regard them as political 
refugees, and yet Haitian refugees are subjected to a double stand- 
ard and are not accorded refugee status because they have been 
termed economic refugees. 

The NAACP last year went on record with a resolution calling 
on the Congress to enact permanent legislation to designate Hai- 
tians as political refugees. 

Another segment of immigration policy in which we have a 
concern relates to the admission of temporary alien workers to the 
U.S. labor market. Years ago we opposed, for example, the notori- 
ous bracero program, and we were quite disturbed to hear the 
President say recently that he was "intrigued" by the prospect. 

We believe, Mr. Chairman and members of the subcommittee, 
that there is an ample supply of workers in this country right now. 
About 8 million of them are unemployed. Black unemployment is 
twice that of white unemployment, and black youth unemployment 
runs about 40 to 50 percent. We believe that too many workers 
create unemployment for the workers and unemployment compen- 
sation costs for the Government. 



163 

We also believe that the addition of temporary alien workers 
generally means the addition of workers with limited rights, and 
we know that was the case in the bracero program. Many employ- 
ers exploit such workers, and we think that exploitation is wrong. 

The NAACP is part of the Task Force on Immigration Policy of 
the National Committee for Full Employment. That is a coalition 
of organized labor, black and Hispanic groups and representatives 
of organized religion. The task force urged the President and the 
Congress not to introduce any program that would work to the 
disadvantage of the workers here in America. 

We are concerned about the impact of undocumented workers on 
other disadvantaged U.S. workers. It is the NAACP's position that 
it should be against the law for employers to hire undocumented 
workers. And I say now, we have no magic formula as to how such 
a law would be enforced, and we did not attempt to address that 
issue last year when we passed the policy statement calling, for 
example, on the President and the Congress to approve of the 
levying of stiff monetary and/or imprisonment penalties on per- 
sons, businesses and/or groups found to be guilty of violating the 
employment and use of undocumented workers. 

These are some of our concerns, concerns based on our deep 
feelings of identification with disadvantaged workers and in line 
with the objectives for which my organization was founded. We do 
not believe that black political refugees should be accorded unequal 
status. We worry about the large numbers and adverse impacts of 
undocumented workers on our society, but we lack the expertise to 
tell you how to approach the problem. 

There is one thing we are certain of, and that is that the answer 
to the illegal alien problem, as the Select Commission has realized 
as well, is not to create a massive foreign worker program. 

Thank you so much. 

[The prepared statement of Althea T. L. Simmons follows:] 



164 



Prepared Statement of Althea T. L. Simmons 

MR. CHAIRMAN AND MEMBERS 0? THE SUBCOMMITTEES, I AM ALTHEA T. L. 
SIMMONS, DIRECTOR OF THE WASHINGTON BUREAU OF THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE. WE APPRECIATE THE OPPORTUNITY TO MAKE THIS 
STATEMENT ON BEHALF OF THE MORE THAN 1800 BRANCHES AND YOUTH UNITS OF THE 
NAACP WHICH ARE LOCATED IN EVERY STATE OF THE UNION AND THE DISTRICT OF 
COLUMBIA. 

THE NAACP HAS BEEN THE LEADING OPPONENT OF RACIAL DISCRIMINATION 
SINCE ITS FOUNDING 72 YEARS AGO IN THE AFTERMATH OF A BLOODY RACE RIOT IN 
SPRINGFIELD, ILLINOIS. WE TESTIFY HERE TODAY ON THE QUESTION OF IMMIGRATION 
POLICY, A MATTER WHICH, I AM SORRY TO SAY, RELATES AT LEAST IN PART TO THE 
QUESTION OF RACIAL DISCRIMINATION. 

BEFORE FURTHER ELABORATING ON THAT LAST POINT, I WILL OUTLINE OUR 
GENERAL POSITION ON IMMIGRATION. THE NAACP IS AN ORGANIZATION COMMITTED TO 
WORKING FOR THE REMOVAL OF ALL BARRIERS OF RACIAL DISCRIMINATION THROUGH DEMO- 
CRATIC PROCESSES. WE ALSO IDENTIFY WITH DISADVANTAGED PEOPLE OF ALL RACES, 
COLORS AND CREEDS. WE BELIEVE IN THE USEFULNESS OF A COSMOPOLITAN SOCIETY 
OR AS IT IS CALLED IN SOME QUARTERS, A PLURALISTIC SOCIETY. FOR THOSE AND OTHER 
REASONS, WE BELIEVE THAT IMMIGRATION IS NOW, AND HAS BEEN, GOOD FOR AMERICA, 
AND THAT IMMIGRATION SHOULD CONTINUE. 

IN ADDITION TO THE LEGAL IMMIGRANTS IN THE NATION, THE SUBJECT OF 
MUCH OF THE OTHER TESTIMONY BEFORE THESE COMMITTEES, THERE ARE THREE OTHER 
GROUPS OF ALIENS IN THE COUNTRY, AND I WANT TO SAY SOMETHING ABOUT EACH OF 
THOSE GROUPS. THERE ARE THE POLITICAL REFUGEES—PEOPLE FLEEING OPPRESSION. 
THEN THERE ARE THE NONIMMIGRANTS—PEOPLE WHO HAVE BEEN ADMITTED LEGALLY ON 
A TEMPORARY BASIS TO PERFORM A PARTICULAR ROLE IN OUR SOCIETY (DIPLOMATS ARE 
NONIMMIGRANTS, AS ARE FOREIGN STUDENTS, AMONG OTHERS). FINALLY, THERE ARE 
THE UNDOCUMENTED ALIENS, WHO ARE HERE IN VIOLATION OF OUR IMMIGRATION LAWS. 

REFUGEES HAVE GENERALLY BEEN WELCOME TO ENTER OUR SHORES AS ATTESTED 
BY THE INSCRIPTION ON THE STATUTE OF LIBERTY: HOWEVER, IN EXTENDING A WELCOME 
TO THE "TIRED, THE POOR" OUR COUNTRY, IN PRACTICE, HAS DISCRIMINATED AGAINST 
COLORED PEOPLE. THE NAACP IS ON RECORD, AS EARLY AS 1953 CALLING FOR A REVISION 
OF THE MCCARRAN-WALTER ACT BECAUSE IT DISCRIMINATED AGAINST PEOPLE OF COLOR 
BY VIRTUALLY ELIMINATING IMMIGRATION FROM THE CARIBBEAN COUNTRIES. IT 
DISCRIMINATED AGAINST DESCENDANTS OF ASIATICS BY CHARGING THOSE OF HALF ORIENTAL 
PARENTAGE TO ORIENTAL QUOTAS REGARDLESS OF THE COUNTRY OF THEIR BIRTH. WE 
URGED THE ELIMINATION OF THE NATIONAL ORIGIN QUOTA SYSTEM AND OTHER RACIST- 



165 



BASED PROVISIONS AND CALLED FOR LIBERALIZATION OF PROCEDURES IN ACCORDANCE WITH 
FAIR AND EQUAL TREATMENT FOR ALL IMMIGRANTS AND PROSPECTIVE IMMIGRANTS. 
I CITE THIS TO SHOW THAT THE NAACP HAS A LONG_STANDING INTEREST IN THE AREA 
BEING CONSIDERED BY THIS HEARING. 

THE NAACP IS CONCERNED THAT A DISTINCTION IS MADE REGARDING ONE GROUP 
OF POLITICAL REFUGEES— THOSE FROM HAITI—WHO ARE FLEEING A DESPOTISM AS HARSH 
AS THAT OF VIETNAM AND YET THEY HAVE NOT BEEN DEFINED AS POLITICAL REFUGEES BY 
THE IMMIGRATION AND NATURALIZATION SERVICE. LAST YEAR A STATE DEPARTMENT 
OFFICIAL SAH) THAT THE DETERMINATION OF "POLITICAL" REFUGEES IS DONE ON A CASE- 
BY-CASE BASIS. WE DO KNOW THAT OUR COUNTRY ACCEPTS REFUGEES FROM INDOCHINA, 
CUBA, EVEN FROM AFGHANISTAN, AND REGARD THEM AS POLITICAL REFUGEES, AND YET 
HAITIAN REFUGEES ARE SUBJECTED TO A DOUBLE STANDARD AND ARE NOT ACCORDED 
REFUGEE STATUS USING THE RUBRIC THAT THEY ARE ECONOMIC REFUGEES RATHER THAN 
POLITICAL REFUGEES. 

AT THE 71ST ANNUAL NATIONAL CONVENTION OF THE NAACP LAST YEAR IN 
MIAMI, MY ORGANIZATION WENT ON RECORD WITH A POLICY STATEMENT REGARDING 
THEIR PLIGHT. THE RESOLUTION SAID, IN PART: 

"WHEREAS, the granting of refugee status to the Haitian 
'boat people' is moral, humane and refutation of the perception 
that our refugee policy is tainted by racial, ideological or 
class discrimination; 

"WHEREAS, discrimination against Haitians turns on whether 
Haitians are fleeing political persecution or economic conditions; 

"THEREFORE BE IT RESOLVED, that the NAACP call upon the 
President to issue an appropriate Executive Order to declare 
z them political refugees; 

"BE IT FURTHER RESOLVED, that the NAACP call upon the 
Congress to enact permanent legislation to designate Haitians 
as political refugees..." 

THE SECOND SEGMENT OF IMMIGRATION POLICY IN WHICH WE HAVE A SPECIAL 
AND LONG-TIME CONCERN, RELATES TO THE ADMISSION OF TEMPORARY ALIEN WORKERS 
TO THE U. S. LABOR MARKET. WE THOUGHT THAT QUESTION HAD BEEN SETTLED BACK IN THE 
EARLY 1960's, WHEN THE CONGRESS DECIDED NOT TO EXTENT) THE NOTORIOUS BRACERO 
PROGRAM. THE NAACP OPPOSES THE REINSTITUTION OF SUCH PROGRAM, ALTHOUGH PRESIDENT 
REAGAN HAS STATED HE IS "INTRIGUED" BY THAT PROSPECT. 

MR. CHAIRMAN, AND MEMBERS OF THE SUBCOMMITTEES, WE BELIEVE THAT WE HAVE 
AN AMPLE SUPPLY OF WORKERS IN THIS COUNTRY RIGHT NOW. ABOUT EIGHT MILLION OF 
THEM ARE UNEMPLOYED. BLACK UNEMPLOYMENT IS TWICE THAT OF WHITE AND BLACK 
YOUTH ARE UNEMPLOYED AT A RATE OF APPROXIMATELY 40%. TOO MANY WORKERS CREATE 
UNEMPLOYMENT FOR THE WORKERS AND UNEMPLOYMENT COMPENSATION COSTS FOR THE GOVERN- 



166 



MENT. FURTHER , THE ADDITION OF TEMPORARY ALIEN WORKERS GENERALLY MEANS THE 
ADDITION OF WORKERS WITH LIMITED RIGHTS. THIS CERTAINLY WAS THE CASE IN THE 
BRACERO PROGRAM. 

MANY EMPLOYERS ACTIVELY PREFER SUCH WORKERS, ON THE GROUND THAT THEY 
ARE DOCILE AND WILL NOT DEMAND THEIR RIGHTS. THE PRESENCE OF EXTRA WORKERS 
WITH LIMITED RIGHTS TEENDS TO LOOSEN U. S. LABOR MARKETS, DEPRESSING WAGES 
AND WORKING CONDITIONS FOR RESIDENT WORKERS. 

THE NAACP IS A PART OF THE TASK FORCE ON IMMIGRATION POLICY OF THE 
NATIONAL COMMITTEE FOR FULL EMPLOYMENT. A COALITION OF ORGAMIZED LABOR, 
BLACK AND HISPANIC GROUPS AND REPRESENTATIVE OF ORGANIZED RELIGION. THE 
TASK FORCE HAS UNANIMOUSLY URGED THE PRESIDENT AND THE CONGRESS NOT TO INTRO- 

"The Caiced Scaces and Mexico experimenced with several vari- 
ations of cemporary foreign worker programs for a generation, 
and they were disasters. The bracero program, which operated 
from 1942 through 1964, brought ill-paid Mexican campesinos 
to work for U.S. agribusiness by the hundreds of thousands. 
While it provided a windfall (in the form of cheap, docile 
labor) to a tiny minority of the nation's farmers, it de- 
pressed wages and working conditions for competing U.S. workers, 
postponed the rationalization of the agricultural labor 
market, exploited the Mexican farmworkers, and caused endless, 
needless grief in U.S. -Mexico relations. 

"Even if the Administration devises a somewhat less exploitive 
program than the old bracero operation, temporary foreign 
worker programs worldwide tend to provide less than equal 
rights for workers..." 

FINALLY, WE ARE CONCERNED ABOUT THE IMPACT OF UNDOCUMENTED WORKERS 
ON OTHER DISADVANTAGED UNITED STATES WORKERS. IT IS THE NAACP 'S POSITION THAT 
IT SHOULD BE AGAINST THE LAW FOR EMPLOYERS TO HIRE UNDOCUMENTED WORKERS. 
WE HAVE NO MAGIC FORMULA AS TO HOW TO ENFORCE SUCH A LAW AND WE DID NOT ATTEMPT 
TO ADDRESS THAT ISSUE WHEN WE LAST SPOKE ON THE ISSUE OF UNDOCUMENTED WORKERS 
AT OUR 68TH ANNUAL NATIONAL CONVENTION IN ST. LOUIS IN 1977. THE TOLLOWING 
STATEMENT OF POLICY WAS ADOPTED AT THAT TIME: 

"WHEREAS, the NAACP is concerned about the effect of employment 
of Illegal aliens on employment opportunities of black citizens 
in these United States; and 

"WHEREAS, legislation has been introduced in the Congress to 
curb the employment of such aliens; and 

"WHEREAS, the proposed legislation raised serious problems of 
civil rights as well as civil liberties, including the use of 
identity cards for all citizens; and 

"'vHEREAS, the proposed use of such Identity cards is fraught 
with dangers of abuse of official powers, 



167 



"THEREFORE BE IT RESOLVED, chat the NAACP in Convention assembled, 
direct the chairperson, Executive Director, and its National Board 
of Directors to advise the President of the United States, the 
Congress, and through them all appropriate departments, agencies, 
corporations, businesses and individuals, of its grave concerns 
relating to illegal aliens, their unlawful employment and the need 
for assurance of full observation of the civil rights of all U.S. 
citizens when legislation is drafted to deal with this problem. 

"BE IT FURTHER RESOLVED, that the President and the Congress, 
through the passage and enactment of proper legislation call for 
the immediate cessation of the employment and use of all illegal 
aliens. 

"AND BE IT FINALLY RESOLVED, that the President and the Congress 
approve of the levying of stiff monetary and/or imprisonment penalties 
to be imposed on all persons, businesses and/or groups and organi- 
zations found to be guilty of violations of the employment and use 
of illegal aliens. , 

THE NAACP HAD DISCUSSIONS ON THE SUBJECT MATTER OF THE ABOVE RESOLUTION 
WITH THEN PRESIDENT CARTER AND ATTOKNEY GENERAL GRIFFIN BELL AND URGED THAT 
APPROPRIATE SANCTIONS BE IMPOSED ON EMPLOYERS FOUND GUILTY OF HIRING UNDOCUMENTED 
WORKERS. OUR POSITION HAS NOT CHANGED AND WE AGAIN URGED THE CONGRESS TO 
CONSIDER AND ENACT PROPER LEGISLATION IN THIS AREA. 

MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEES, 'THESE ARE SOME OF OUR 
CONCERNS. CONCERNS BASED ON OUR DEEP FEELINGS OF IDENTIFICATION WITH DISADVANTAGED 
WORKERS AND IN LINE WITH THE OBJECTIVES FOR WHICH MY ORGANIZATION WAS FOUNDED. 
THE NAACP DOES NOT BELIEVE THAT BLACK POLITICAL REFUGEES SHOULD BE ACCORDED 
DIFFERENT TREATMENT THAN THAT AFFORDED OTHER POLITICAL REFUGEES. WE WORRY 
ABOUT THE LARGE NUMBERS AND ADVERSE IMPACTS OF UNDOCUMENTED WORKERS ON OUR 
SOCIETY, BUT WE LACK THE EXPERTISE TO TELL YOU HOW TO APPROACH THE PROBLEM. 
THERE IS ONE THING WE ARE CERTAIN OF AND THAT IS —THE ANSWER TO THE ILLEGAL 
ALIEN PROBLEM, AS THE SELECT COMMISSION REALIZED AS WELL—IS NOT TO CREATE 
A MASSIVE FOREIGN WORKER PROGRAM. 

THANK YOU MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEES FOR ALLOWING 
US THIS OPPORTUNITY TO BE HEARD ON THIS VITAL MATTER. 



168 

Mr. Mazzoli. Thank you very much, Ms. Simmons. 
Mr. Kee is recognized for 5 minutes. 

STATEMENT OF NORMAN LAU KEE, CHAIRMAN, IMMIGRATION 
AND REFUGEE POLICY TASK FORCE OF THE UNITED 
STATES-ASIA INSTITUTE 

Mr. Kee. Mr. Chairman, honorable members of the subcommit- 
tees, I want to express my appreciation for this opportunity to 
testify before you. 

Until the recent past, Asians have been the target of discrimina- 
tory and racist provisions in our immigration laws. For many 
years, the immigration laws of this great nation proclaimed that 
Asians were less desirable and less able than others to become 
immigrants and future citizens of the United States. This percep- 
tion of Asians and Asian Americans was one of the contributing 
factors which led to many instances of civil rights violations and 
ultimately to that shameful episode in U.S. history in which 
Americans of Japanese ancestry were placed in internment camps. 

In fact, immigrants from Asia have become exemplary American 
citizens. We can count among us Nobel laureates, leaders in science 
and technology, in trade and commerce, and in all walks of Ameri- 
can life. We have fought with distinction and bravery along with 
other Americans. Although our forefathers came as immigrants, 
we do not want to be perceived as foreigners because of our appear- 
ance or because of our desire to retain some aspects of our cultural 
heritage. 

Therefore, Asian Americans are vitally concerned and interested 
in present and future immigration and refugee policy. In late 1979, 
the United States-Asia Institute assembled a task force of immigra- 
tion experts to explore and assess all aspects of immigration laws 
and their impact on Asian Americans. 

After months of dedicated work, this task force published a 
paper entitled "An Asian/Pacific American Perspective: Future 
Directions of U.S. Immigration and Refugee Policy," a copy of 
which has been presented to you as well as to all Members of 
Congress and the Select Commission. We sincerely hope it will 
serve as a resource to your committee in understanding the Asian 
American perspective, and I would like to submit it for the record. 

Mr. Mazzoli. It will be received as part of the record. 

Mr. Kee. A review of our position paper indicates that there is 
no great difference in our overall objectives of having a fair and 
effective immigration law to serve the U.S. national interest. In 
our study, we had identified areas of inequities in the present 
immigration law in which the hardship falls essentially on Asian 
Americans. 

One of these concerns elderly permanent residents who have 
resided in the United States for many years and have been receiv- 
ing SSI to supplement their inadequate income. Under the present 
statute, which provides that each entry is treated as a new entry, 
they may be excluded upon returning to the United States after a 
trip abroad on the grounds that they are likely to become public 
charges. We concur with the Select Commission's recommendation 
that the present law be changed to take care of this situation. 



169 

Another area of inequity is the requirement for all applicants for 
permanent residence as a medical doctor to take the parts 1 and 2 
of the national boards. This was a special hardship on the many 
doctors of Asian ancestry who had waited many years for a quota 
number and found themselves required to take an examination on 
basic sciences usually required in the second year of medical 
school. The Select Commission has recommended that part 1, or 
the basic science portion of the exam, be eliminated and we concur 
in this recommendation. 

Perhaps the most important issue for Asian Americans is the 
retention of the fifth preference category, for siblings. Asians con- 
sider brothers and sisters to be part of a nuclear family and feel 
very strongly that family reunification includes siblings and their 
families. It has been traditional that brothers are responsible for 
the livelihood and well-being of brothers and sisters and that they 
have always been ready and willing to be financial guarantors for 
them. 

Inasmuch as the sibling relationship would be subject to quota 
limitation, we feel it would be in the national interest to continue 
the preference rather than allocate these numbers for the inde- 
pendent category, for which the criteria for entry are somewhat 
uncertain and unpredictable. 

We differ with the Select Commission's recommendation to main- 
tain the present system of reviewing consular denials of visa appli- 
cations. Presently a denial is informally reviewed by another con- 
sular officer at the same post. The visa applicant has the right to 
ask for an advisory opinion from the State Department. 

However, we believe that there should be a more structured, 
more objective and impartial system of review, particularly in 
cases of petition submitted by relatives who are citizens or perma- 
nent residents of the United States. We propose the establishment 
of a board of visa appeals in the State Department similar to the 
Board of Immigration Appeal. 

We have also subscribed to the recommendation of the Select 
Commission for the strengthening of the Immigration Service to 
make it a more effective and professional organization. We also 
support the legalization of undocumented aliens on a broad basis, 
as recommended by the Select Commission. 

In closing, I would like to quote a few remarks from the Chair- 
man of the United States-Asia Institute, Kay Sugahara: 

The United States has a secret weapon, something more than military might. The 
United States has an advantage over all nations in this world because we are a free 
nation guaranteeing certain rights to all citizens. The United States has an advan- 
tage because our immigration policy, no matter how imperfect, has enabled us to 
accumulate a wide mixture of people, enabling us to have access to every nation in 
the world. 

Thank you very much. 

[The prepared statement of Mr. Kee and material submitted for 
the record follow:] 

Prepared Statement of Norman Lau Kee 

(Mr. Kee is the senior partner of the law firm of KEE and LAU-KEE of New York 
City. He is also a member of the Federal Advisory Committee to the Immigration 
and Naturalization Service, having been its chairman for 1979 and 1980; a former 
New York City Commissioner of Human Rights from 1975-1978; and a board 
member of many civic and community organizations.) 



83-514 0-81-12 



170 

Ladies and gentlemen, honorable members of the Judiciary Committee, I want to 
express my appreciation for this opportunity to testify before you. 

Until the recent past, Asians have been the target of discriminatory and racist 
provisions in our immigration laws. For many years, the immigration laws of this 
great nation proclaimed that Asians were less desirable, and less able than others, 
to become immigrants and future citizens of the United States. This perception of 
Asians and Asian Americans was one of the contributing factors which led to many 
instances of civil rights violations, and ultimately, to that shameful episode in 
United States history in which Americans of Japanese ancestry were placed in 
internment camps. 

In fact, immigrants from Asia have become exemplary American citizens. We can 
count among them Nobel Laureates; leaders in science and technology, in trade and 
commerce, and in all walks of American life. They have fought with distinction and 
bravery alongside other Americans. Although our forefathers came as immigrants, 
we do not want to be perceived as foreigners because of our appearance or because 
of our desire to retain some aspects of our cultural heritage. 

Therefore, Asian America are vitally concerned and interested in present and 
future immigration and refugee policy. In late 1979, the U.S.-Asia Institute assem- 
bled a task force of Immigration experts to explore and assess all aspects of immi- 
gration law and their impact on Asian Americans. After months of dedicated work, 
this task force published a paper entitled "An Asian/Pacific American Perspective: 
Future Directions of U.S. Immigration and Refugee Policy," a copy of which has 
been presented to you as well as all members of Congress and the Select Commis- 
sion. We sincerely hope that it will serve as a resource to your committee in 
understanding the Asian American perspective of immigration and refugee policy. 

A review of our position paper indicates that there is no difference in our overall 
objectives of having a fair and effective immigration law to serve the United States 
national interest. In our study, we had identified areas of inequities in the present 
immigration law in which the hardship falls essentially on Asian Americans. One of 
these concerns elderly permanent residents who have resided in the United States 
for many years and have received SSI to supplement their inadequate income. 
Under the present statute which provides that each entry is treated as a new entry, 
they may be excluded upon returning to the United States after a trip abroad on 
the grounds that they are likely to become public charges. We concur with the 
Select Commission recommendation that the present law be changed to take care of 
this situation. Another area of inequity is the requirement for all application for 
permanent residence as a medical doctor to take Part I and II of the National 
Board. This was a special hardship on the many doctors of Asian ancestry who had 
waited many years for a quota number and found themselves required to take an 
exam on basic sciences usually required in the second year of medical school. The 
Select Commission has recommended that Part I or the basic science portion of the 
exam be eliminated for those doctors who have been already in practice and we 
concur in this recommendation. 

Perhaps the most important issue for Asian Americans is the retention of the 5th 
preference category for siblings. Asians consider brothers and sisters to be part of 
the nucleus family and feel strongly that family reunification include siblings. It 
has been traditional that brothers are responsible for the livelihood and well-being 
of their brothers and sisters and they are always ready and willing to be financial 
guarantors for them. Inasmuch as the brother-sister relationship would be subject to 
quota limitation, we feel it would be in the national interest to continue the 
preference for brothers and sisters rather than allocate these numbers for the 
independent category for which the criteria for entry are somewhat uncertain and 
unpredictable. 

We differ with the Select Commission's recommendation to maintain the present 
system of reviewing Consular denials of visa applications. Presently, a denial is 
informally reviewed by another Consular Officer at the same post. The visa appli- 
cant has the right to ask for advisory opinion from the Visa Officer of the State 
Department in Washington, D.C. We believe that there should be a more structured, 
objective and impartial system of review, particularly in cases of petition submitted 
by relatives who are citizens or permanent residents of the United States. We 
propose the establishment of a Board of Visa Appeals in the State Department 
which would have functions similiar to those of the Board of Immigration Appeal, 
as an additional avenue of appeal in those cases. 

We have also subscribed to the recommendation of the Select Commission for the 
strengthening of the Immigration Service to make it a more effective and profes- 
sional organization. We also support the legalization of undocumented aliens on a 
broad basis as recommended by the Select Commission. 



171 

In closing, I would like to quote a few remarks from the chairman of the U.S.- 
Asia Institute, Kay Sugahara: "The United States has a secret weapon . . . some- 
thing more than military might. . . . The United States has an advantage over all 
nations in this world, because we are a free nation guaranteeing certain rights to all 
our citizens. . . . The United States has an advantage because our immigration 
policy, no matter how imperfect, enabled us to accumulate a wide mixture of people 
enabling us to have access to every nation in the world. 

We may as well frankly admit that our natural prejudices prevented our country 
from using its full resources for which we were minor league. To cite a parallel, 
professional baseball for generations was inhibited from using Blacks. Will you not 
agree that in world athletic competition in baseball, football, basketball and track 
that the United States would be weaker if we exluded Blacks and Hispanics from 
our teams? 

There are today 3.5 million American citizens of Asian origin. The U.S. -Asia 
Institute was formed to fill a great need. We will focus on how the U.S.-Asia 
Institute can help our nation meet the problems of our generation. Our contribu- 
tions should make the earlier waves of immigrants very happy that immigrants did 
not stop with Ellis Island. 

Our Institute must have the courage to face tough issues of today. While our 3.5 
million constituents form a small fration of the national population, acting in 
concert they become a national asset. 

On the immigration issue we can contribute much by stimulating thought instead 
of heightening emotional reaction. 

With your guidance and cooperation, we will tackle the issue of national concern 
where the unique skills and contacts of U.S.-Asians can be useful for our nation. 

How can we contribute more to America? 

Thank you, ladies and gentlemen! 



172 



US-fiSiA 



US-Asia Institute 

US-ASIA INSTITUTE 



The. US-ASIA INSTITUTE, a mtional nonp^i^X o'lga.nization, uxu, 
ioundzd in 1979 by a gAoap o^ A^ian/PcLcXi-Lc Ame/Ucani conaeAned about 
tkz iiUuAZ oi UniXed Siotei ittcutAjoni MiXh Emt \iian and PacJ.i-ic 
courUAA.e^. Rzcognizing tkz it/uUzgic vnpoAXancz o^ thz Eoit Kiian and 
Pacific ie.gion, and izzLing Kiian/PacJ-i-ic knzAicAni, at, a qioup had a 
un<,(ju.e conViibtttLon -to makz, thz US-ki,ia. ImtiXtJutz uxu zitabtiihzd oa a 
\JzhicJLz ion. itudying thz ii,itazi>, p>iziznting v-uiblz aJiX.zn.nati\izJ>, and 
oiizfujng opponXnnitizi ioi intz/idction and diioiiJtAjon. 

Thz In&tUuZz ioaiizi -iXi ziionXs, in jJouA oAzoi: 

(t) ConmanicatAjon . Thz US-^la Imtitutz hoi diAzct Ujizit oi 
cormuYiLcjOtion uiLth Ba^t Aiian and PaccjJ-oc potiticaJL and buiiinziii 
tzadzAii. Thziz tinzi, combinzd uuMi thz aniquz biojiLtuAot/ biting UjoJi 
ikiti6 oi Aiian/PacUiic hmznJ.ca.ni, allou) thz Jnititatz to iaciLitatz 
cormanication bztuizzn intzn.zi>tzd poAXizi and contacXi in thz Eoit Aiian 
and PacXiijn unnM. 

LikzMiiz, uiith a con&tiXazncy oi ovzA ioan. mitlijan kiianlPaciiiz 
AmzAicani , thz ImtiXuXz haa, thz ability to iocu.6 on pn.obZmi iacXng thz 
UniXzd StaXzi, oUznXng panXXcuZaAly aczuAoXz obiznvaXiom in axexu 
involving Paciiic Benin naXioni. 

(2) TnXzn.niXi.onaZ S Vomzitia ViicuMioM . Coniz/iznzz&, Monhihopi, 
ieminoAA, and iacz-to-iacz diiCLiiiioni oaz ipomoAzd by tiiz US-Aiia 
JnitituXz on a AzguZoA. ba^ii to addAzii kzy iiiazi oi thz day, ipzzi- 
iicalZy in thz oAzaJt oi ioAzign policy, inXzAnationwJL tnadz, and imaZZ 
bwiiijiziii. TonMinl) van.y iAom StaXz Vzpa/iXmznt bniziingi to inXviruxXionaZ 
pKoblzn izminaxi) in Eai,t k&ian and Paciiic countAizi to naXionaZ IzadzA- 
ihip conizAznczi to domziticl inXzAnaXionaJi dinnzA dXicaiiiom to pAivaXz 
mzzXingi uxiXh political and baiinzii Izadzu. ThAough thziz dii- 
cuMijom, thz InitiXutz szzki to bAing to thz ioAzinonX pjAoblzmi oi 
inXzAnaXicnaZ and domzitic conczAn, and to pAz&znt pAacXicaZ ioluXiom, 
to thz conczAYii). 

[31 Rm zoAchl Pu btii, hing . PeMOAch ii> condacXzd ioA thz US-hiia 
ImtltuXz 'Uy~Cx&~K3UZIoAy~CommiXXzz6 , pAoiz6&oAi on iabbaXicaZ Zzavz aX 
thz In&tiXuXz, iXi iemina^r panXicipanXi , iXi, Boand and itaH mzmbzAi. 
Thii AZiZxiAch iocLiiZi on topici oi inXzAnaXionaZ and domz&tlc impoAX- 
ancz, oiizAAjig an ki> ion I Paciiic AmzAican pzAipzcXivz on kzy -6i4ue4. 

Thz In&tiXuXz pabti&hzi Az&zoAch -- both in-houiz and iAom thz ouXiidz — 
pAoviding thz MOAk mzzXi thz gaidziinzi oi thz US-Aiia InitiXuXz'i 
zdiXoAiaZ. policy and ii dzemzd MiXkin thz Azalm oi InitiXuXz iociu,. 

[4] TzchnicaZ \iii^tat\cz . Thz US-Aiia. ImtiXuXz oUzu zxpzAX 
tzchnical oiiiitancz <n thz oAzoi oi mall bai,inzi>i> , itvtzAnational 
tAodz, and ioAzign policy, conczntiating on thz Ea&t Aiian and Paciiic 
Azgion. Situ-ccei nangz iAom cooAdinating tnadz miiiioni to coniz'zncz 
itAoXzgy pla-'Vfiing to pAoviding itaXXitical abitnacti on ipzciiic tAodz 
oAzoi to rr.idiaXing -tnadz diAcaiiioni to coniuZXing MiXh kzy contacXi on 
panXicuZoA ^aum. 

lOISTwentie'hS'ree; ^4 W • Suite 200 • Washington D C 20036 • (202: 466-61 ?i 



173 



US-f^iA 



us -Asia Institute 

US-ASIA INSTITUTE 
BOARD of DIRECTORS 



The Board of Directors of the U.S. -Asia Institute consists of 14 
Asian/Pacific American leaders from across the United States. Prominent 
In their own fields, they came together with the common goal of creating 
a national Asian/Pacific American "think tank" to set forth the contri- 
butions and perspective of Asian/Pacific Americans. 



KAY SUGAHARA serves as Chairman of the Board of the US-Asia Institute. 
Possibly the foremost Asian/Pacific American in the U.S., Sugahara Is 
Chairman of the Fairfield Group, a diversified Investment corporation 
dealing in oil tankers, refrigerated ships, and oil and gas exploration. 
Sugahara assumed the chairmanship of the Institute in April 1981. 

ESTHER G. KEE serves as Executive Director of the US-Asia Institute. One 
of the Co-Founders of the Institute, Mrs. Kee has a myriad of Interests 
and accomplishments. She has successfully managed her own business, 
coordinated political functions and fundraisers, and served on various 
boards Including the Citizens Advisory Board for WNET-TV in New York. 
She has a leading role in the direction of the U.S. State Department 
through her service on the President's Advisory Board on Ambassadorial 
Appointments and the State Department's Selection Board Advisory 
Committee. 

JOJI KONOSHIMA serves as Associate Executive Director of the US-Asia 
Institute, charged with Government and International Relations. The 
other Co-Founder of the Institute, Konoshima has long been active in 
governmental and International affairs starting with a long, active 
history in New York labor politics, and over the years developing 
contacts with virtually every East Asian and Pacific political and 
business leader as well as contacts throughout the U.S. 

GEORGE ARATANI is a Los Angeles businessman active in international 
trade and Japanese American community affairs. He has presided over the 
successful growth of two corporations which he serves as Chairman — 
American Commercial, Inc. and Kenwood Electronics, Inc. 

KENNETH CHAR has been a key figure In the development of Hawaii's travel 
and tourism industry as Vice Chair of Aloha Airlines and Vice President 
of Air Micronesia, Inc. Char has a broad range of activities and public 
service in many state and national organizations. 

GEORGE DOIZAKI serves as President of the American Fish Company in Los 
Angeles and has interest in numerous Investment corporations. Doizaki 
organized various community and religious entitles, including the San 
Fernando Buddhist Sunday School, the Valley Japanese Community Center, 
the San Fernando Credit Union, the Valley Judo School, the Southern 
California Fisheries association, to name a few. Further, he serves as 
President of the Japanese American Community Planning and Development 
Corporation which is coordinating the Little Tokyo project in downtown 
Los Angeles. 

1015 Twentieth Street, N.W. • Suite 200 • Washington. D.C. 20036 • (202)466-6124 



174 



Board of Directors (2) 

MANUEL JOSE is President of Ed & Joe's, Inc., a trading firm based in 
Agana, Guam. Jose travels worldwide for various community and business 
activities. 

CHARLES KIM is a prominent New York businessman active in promoting 
trade between the U.S. and Korea in a wide variety of ventures. He 
frequently travels to Asia in his role as President of Metro Charles, 
Inc. Kim is a leading figure in the New York Korean American community. 

NORMAN LAU KEE is a New York attorney with the firm of Kee and Lau-Kee. 
His practice has made him a leading expert on immigration law — 
acknowledged by his appointment to the Federal Advisory Committee to the 
Immigration and Naturalization Service, which he chairs. Kee pursues a 
wide range of community activities and is a member of the Board of 
Directors of numerous organizations and business corporations. He 
served as a Human Rights Commissioner for New York under Mayor Abraham 
Beame. 

GLENN LAU-KEE is a New York attorney involved in corporate, immigration, 
and international law with the firm of Kee and Lau-Kee. Lau-Kee is 
active in New York Chinatown civic affairs, serves on various YMCA 
boards, and serves on the President's Advisory Board of the Borough of 
Manhattan Community College, City University of New York. 

CHAN TOM III is a young Chicago businessman, heavily involved in several 
affiliated companies. As managing officer of Chinese Trading Company 
and Chinese Noodle Company, he is directly responsible for these profit 
centers, and under his leadership, these profit centers have demon- 
strated remarkable growth. Tom is active in the Chinese business 
community aiding specifically in Chinese festivals. New Year Fundraising 
Dinners, and other Chinese civic activities. 

RUTH WATANABE is an energetic and concerned leader of the Japanese 
American community in Los Angeles. Her Interest in the welfare of the 
Asian community is exemplified in her role as Board Member and 
Secretary/Treasurer of the Japanese American Community Planning and 
Development Council. 

JAMES YING is Chairman of YingCo., Inc., a diversified investment 
corporation based in New York City. Further, Ying serves as President 
of the New York Sino American Chamber of Commerce. 

DR. JOHN YOUNG is Professor and Director of the Institute of Far Eastern 
Studies at Seton Hall University in New Jersey. Young is the author of 
numerous publications on Asian studies and has extensive experience with 
research projects in bilingual and bicultural education in the U.S. He 
was also one of the principal creators of the National Advisory Council 
to the East Asian and Pacific Affairs Bureau of the Department of State 
which serves as a llaiso 



175 



US-Asia Institute 



AN ASIAN/PACinC AMERICAN PERSPECTIVE: 

FUTURE DIRECnONS 

OF 

UJS. IMMIGRAnON AND REFUGEE POUCY 



Presented by 

The Immigration and Refugee Policy 

Task Force 

of the 

U.S.-ASIA INSTITUTE 



September 1980 



1015 Twentieth Street, N.W. • Suite 200 • Washington, D.C. 20036 • (202) 466*124 



176 



AN ASIAN /PACIFIC AMERICAN PERSPECTIVE: 

FUTURE DIRECTIONS OF U.S. IMMIGRATION AND REFUGEE POUCY 



CONTRIBUTORS: 



CONSUITANTS: 



BENJAMIN GIM, Esquire 
BILL ONG HING, Esquire 
NORMAN LAU KEE, Esquire 
DENNIS MUKAl, Esquire 
WILMA SUR, Esquire 



MUZAFFAR CHISHTI 
PEDRO LAMDAGAN, Esquire 
LEE THOMAS SURH. Esquire 



TECHNICAL 

ASSISTANTS 



MARY SUE BISSELL 
GAIL KEE 

MARY ANN MARCHIEL 
DERRICK TAKEUCHI 



177 



INTRODUCTION 

Congress and the Administration of President Jimmy Carter 
recognize the urgent need to formulate a new immigration and 
refugee policy for the future. The last comprehensive legisla- 
tion, passed in 1952, has been revised many times in attempts 
to keep abreast of rapidly changing domestic situations as well 
as foreign policy considerations. The patchwork of amend- 
ments superimposed on the 1952 legislation clearly is inade- 
quate to serve the needs of the United States. 

The Asian/Pacific American community is deeply concern- 
ed with the direction of proposed new legislation. Early racist 
immigration laws were openly hostile to Asians. Recent im- 
migration laws discriminate against Asians in subtle ways. 
Because of this concern, the U.S. -Asia Institute asked promi- 
nent Asian/Pacific American iirmiigration lawyers to form the 
Immigration and Refugee Policy Task Force. The response 
was enthusiastic. The members of the Task Force were im- 
selfish in giving their time and expertise, in giving the Institute 
pro-bono services in the drafting and preparation of this posi- 
tion paf)er. We owe a debt of gratitude to Task Force 
members — BENJAMIN GIM, BILL ONG HING, NOR- 
MAN LAU KEE, PEDRO LAMDAGAN, and DENNIS 
MUKAI. 

We also want to express our sincere appreciation to LEE 
THOMAS SURH, a staff member of the Select Conrniission 
on Immigration and Refugee Policy; MUZAFFAR CHISHTI 
of Local 23-25 of the International Ladies Garment Workers 
Union; WILMA SUR, a Los Angeles attorney; and DERRICK 
TAKEUCHI, former U.S. -Asia Institute Administrative 
Director, who were valuable resource persons. 



JOJI KONOSHIMA 
Executive Director 
U.S. -Asia Institute 
September 1980 



178 



CONTENTS 

Pigc 

I. HISTORICAL BACKGROUND OF ASIAN IMMIGRATION TO THE US 1 

II. IMMIGRANTS 3 

A. Total Numbers 3 

B. Preference System . .'. 3 

C. Family Reunification ■* 

D. Refugees 4 

E. Other— Investors, Professionals, Qualifications 5 

III. NON IMMIGRANTS 7 

A. Extension of Visas ^ 

B. Foreign Entertainers (H-1) Visas 7 

C. Intra<ompany Transferees (L-I) and Definition of Affiliates 7 

D. Change of Status— Notice of Findings and Right to Hearing 7 

IV. ISSUES OF PARTICULAR CONCERN TO ASIAN/PACIFIC AMERICANS 9 

A. Documentation for Chinese (Vital Statistics) 9 

B. FiUpino War Vets and FMG's 9 

C. Korean Citizens Employed by U.S. Army in Vietnam 10 

D. Language Problems in Natiu'alization 10 

E. Exclusion of Permanent Residents Receiving SSI & the Reentry Doctrine 10 

F. Use of Special "Chinese Unit" in INS " 

G- Amnesty and Employer Sanctions for Illegal Immigrants 11 

H. Binding Affidavits of Support and SSI Eligibility 1 1 

V. IMMIGRATION PROCESS AND ADMINISTRATION 13 

A. Commitment Needed for a More Effective INS 13 

B. Labor Certification 14 

C. INS Must have Efficient Methods to Replace Lost or Misplaced Alien Cards 14 

D. Local Law Enforcement Agencies' Involvement in Immigration Enforcement 14 

E. Waiver of Adjustment of Status Prohibition for Aliens Who Worked Without Permission 14 

F. Streamlining the Naturalization Process 14 

VI. FUNDAMENTAL RIGHTS 17 

A. Reentry Doctrine 17 

B. Deportation Process '8 

1. Statute of Limitations 18 

2. Right to Counsel 18 

3. Section 241(0 '* 

4. Exclusionary Rule for Illegally Obtained Evidence 19 

C. Review of Consular Decisions 19 

CLOSING REMARKS : .' 20 



179 



HISTORICAL BACKGROUND OF ASIAN 
IMMIGRATION TO THE U.S. 



During the mid-1800's, political and social upheaval 
in China with such cataclysmic events as the Taiping 
Rebellion created an "inexpensive" source to fill a labor 
shortage created by the economic expansion and increased 
job opportunities in the United States. The historical con- 
fluence of these political and economic forces at this time 
produced the first influx of Asian immigrants into the 
United States. The economic necessity first wave of im- 
migration, however, was halted when conditions changed 
drastically and Chinese workers became a glut on the labor 
market during the post -Civil War depression. 

About this time, the beginnings of increased im- 
migration from Japan compounded the problem. After 1896 
the political forces favoring Chinese exclusion, which had 
been niu-tured in California, began mounting efforts in 
Washington to pressure legislators into enacting statutory 
restriction or prohibition of Chinese immigration. These ef- 
forts proved successful as an agreement in 1880 between the 
Chinese Empire and the U.S. Government allowing U.S. 
law to govern Chinese immigration to America resulted in 
the enactment of the Chinese Exclusion Act of 1882. The 
Act suspended the immigration of Chinese workers for ten 
years and denied the Chinese eligibility for naturalization. 
Through a series of legislative enactments over the following 
twenty years, Chinese immigration virtually ceased. 

The Japanese began immigrating to the U.S. in 
significant numbers after 1884 when the Japanese govern- 
ment adopted emigration policies allowing its laboring 
classes to seek work in foreign countries. Negative reactions 
met the flow of Japanese immigration through a fear that 
another Asian group would use a contract labor system de- 
veloped in Hawaii as a means of ultimately coming to the 
mainland United States. This apprehension created suffi- 
cient political support to bring about legislation preventing 
Japanese contract laborers from immigrating to the U.S. or 
its territories in 1885. Subsequent court cases involving 
Japanese immigration consistently upheld exclusion of the 
Japanese. In 1900 the Japanese government began denying 
laborers permission to immigrate to the U.S.; they did, 
however, continue to allow them to go to Hawaii until 1905 
when this flow was temporarily halted. Japanese immigra- 
tion decreased significantly after 1907 when the Japanese 
government entered into a "Gentlemen's Agreement" re- 
stricting emigration of its nationals to the U.S. 

The U.S. imbedded Asian exclusion into its laws 
through the Immigration Act of 1917 and the creation of an 
"Asiatic Barred Zone" which prohibited all Asian ethnic 
groups except the Japanese from immigration to the U.S. 
The Japanese were not included in the group because of 
their exclusion by means of the Gentlemen's Agreement. 
They received special treatment, however, when what was 
unofficially known as the Japanese Exclusion Act of 1924 
(Officially, the Quota Immigration Law), which barred the 
Japanese from admission to the U.S. for permanent resi- 
dency, was enacted. 



The I9I7 Immigration Act and the Act of 1924 
governed Asian immigration under American law until 
1952. Leading up to the Immigration Act of 1952, the 
Chinese Exclusion Act was repealed in 1943 and the War 
Bride Act of 1945 allowed wives and children of American 
servicemen to immigrate freely to the U.S. It was, however, 
the 1952 Act which eliminated from our laws the complete 
exclusion of Asians. But the 1952 Act created a national 
quota system which restricted immigration by aliens in- 
digenous to the Asia-Pacific Triangle, an area which in- 
cludes the Asian continent and most nations in the Pacific 
Ocean. The 1952 Act was clearly designed to restrict Asian 
immigration to the U.S. 

The remaining vestiges of statutory restrictions 
directed specifically at Asian immigration were finally 
abolished in 1%5 when amendments to the 1952 Act estab- 
Ushed the present preferential system. The Amendments 
specifically did away with the inherent racial and national 
prejudices which had previously been ingrained in American 
immigration laws. 

The effect of discriminatory laws reflects itself in the 
statistics for immigration to the U.S. For example, between 
1910 and 1950, a combined total of approximately 193,000 
Japanese and Chinese immigrated to the U.S. During this 
same period, total U.S. immigration was over 12,000,000. 
The effects of disparate treatment lasted well into the 
1960's. 

After the remaining vestiges of the Asian exclusion 
laws were effectively removed, Asian Americans could finally 
attempt to be reunified with family members without resort- 
ing to the fraud or misrepresentation that the racially dis- 
criminatory laws had left as their only alternative. The 
number of relative petitions filed for family members in 
Asian countries after 1968 was understandably high. Thus, 
the number of immigrants from those countires rapidly in- 
creased as the opportunity to finally be with one's family 
came to fruition. This was despite the fact that even after 
1968, the prospective immigrants faced severe political 
restrictions on travel while their American relatives were 
confronted with unreasonable documentary and evidentiary 
requirements of proving relationships. 



180 



n. IMMIGRANTS 

A. Total Numbers 

It is estimated that the current total legal U.S. immi- 
gration, including quota immigrants, and immigrants not sub- 
ject to quota, and non-emergency refugees, numbers approx- 
imately 450,000 annually. This constitutes only about 0.2% of 
the total U.S. population. This is low in comparison to earlier 
periods in U.S. history. During 1900-1909, average annual im- 
migration of 820,000 represented 1.06% of the total U.S. 
population— over 5 times greater than the present percentage. 

Currently there is a long waiting period for many immi- 
gration applicants, often as long as 14 years. We feel that pre- 
sent levels of immigration can be reasonably increased without 
straining our economy and resources. 

It is therefore recommended that: 

1 . Provision be made to provide for reunification of 
families for those relative beneficiaries who are presently 
waiting for quota availability; 

2. The future level of immigration be established in 
a way which balances the dual concerns of avoiding long 
waiting periods for family preferences, and consideration of 
the economic, demographic and social conditions within the 
United States. It is our view that the U.S. can absorb up to 
around 750,000 new iirunigrants annually without detrimental 
effect on the economy; 

3. This level be examined and adjusted 
periodically as indicated by changes in the above-mentioned 
dual concerns; 

4. This level does not include those refugees ad- 
mitted as emergencies above the normal refugee flow. 

B. Preference System 

The United States presently uses a "preference" system 
designed to distribute the total numbers as to who shall have 
priority in immigrating. Theoretically, the higher the 
preference, the earlier the entry for permanent residence. 

There are six preference categories.* Categories 1, 2, 4, 
and 5 are for family members, and 3 and 6 are for employment 
preference. Each preference category is allotted a percentage of 
the total number of quota immigrants. This system is not a true 
preference system but a category system with an allocation for 
each category. The most lengthy backlogs are in the family and 
relative categories. Therefore, it is common for a person with a 
lower preference to emigrate to the U.S. ahead of a person with 
a higher preference. 

The numerical limitation of 20,000 for each country, 
and a sub-quota limit of 600 per colony has caused chronic and 
serious backlogs in some preference categories for many coun- 
tries. Abolishing the 20,000 limit per country raises the fear 
that a few sending countries will dominate the use of the 
quotas. We feel that a higher limit of 40,000 per country will 
greatly, if not totally, eliminate prolonged waiting periods for 
relatives. 

These backlogs are an indication of the demand in those 
preference categories from the sending country. It should also 
be recognized that the pattern of demand is an ever-changing 

•The seventh preference — for refugees— was eliminated by passage of the 
Refugee Act of 1980. 



one which shifts from one preference category to another and 
from one country to another. Therefore, there seems to be a 
need for a mechanism for periodic review and adjustment. 

Another inequity in the present system relates to refugee 
policy. "Emergency refugees", or those "emergency 
situation" refugees admitted in numbers above established 
normal flow refugees (the current figure being 50,000) for com- 
pelling humanitarian reasons, as determined by the President, 
should not be counted against the normal flow of immigrants 
in the current or succeeding years. To do otherwise would 
amount to permitting the President to give a particular group 
extraordinary priority over other immigrants, placing the 
burden entirely on immigrants waiting to enter the U.S. 

We feel that these problems can be alleviated through 
revision of the preference system. Design objectives of any new 
preference system should include: 

1 . Giving highest priority to the reimification of the 
nuclear or core family which should include spouse, unmarried 
children as well as married children and their families, parents, 
grandparents, brothers and sisters and their families. It has 
been suggested that only unmarried siblings should be the 
beneficiary of a visa petition for preference status. We strongly 
oppxjse this view because it will result in preventing the 
reunification of the family. 

2. Allocating percentage level ceilings for prefer- 
ence categories which would minimize backlogs in all 
categories. 

3. Reserving portions of the annual quotas for per- 
sons now covered imder the third and sixth preference 
categories as well as non-preference. 

4. Giving every nation in the world a minimum 
"open" allotment. 

We propose that total immigration for all categories, 
but excluding immediate relatives (IR) and emergency refugees, 
be limited to 550,000 annually. The present national origin 
limitation of 20,000 per country, should be expanded to 40,000 
except for Canada and Mexico which should receive additional 
numbers. 

Three major categories should be created: 

1. Non-emergency Refugees — The recently passed 
Refugee Act should be maintained with a normal flow of 
50,000 annually. 

2. FamOy 

a. Immediate Relative (IR) — Not subject to 
quota limitation. U.S. citizens petitioning for spouse, unmar- 
ried children regardless of age, parents, grandparents, unmar- 
ried siblings who are accompanying a parent entering imder 
this preference. Also a permanent resident petitioning for 
spouse and unmarried children regardless of age. 

A limit of 350,000 should be initially set for the 
three preference groups listed below with the provision that 
unused numbers will flow down to the third category. There 
should be no percentage allocations for each preference group 
in order to give priority to the highest preference applicant. 

b. First preference — U.S. citizens petitioning for 
married children and their accompanying immediate spouse 



181 



and unmarried minor children. 

c. Second preference— U.S. citizens petitioning 
for brothers and sisters with their accompanying spouses and 
unmarried minor children. Also permanent residents petition- 
ing for parents. 

d. Third preference — Permanent residents peti- 
tioning for unmarried brothers and sisters. 

3. Third Category or Independents should be divided 
into two sections. Numbers allocated for this category shall be 
150,000 plus any unused portion of the family category. 

a. The first section shall permit 250 persons from 
each country in the world to enter the U.S. on the basis of 
motivation without regard to preference, wealth, or skills. The 
purpose of this section is to maintain the U.S. tradition of being 
a land of opportunity for those who are less fortunate. Provision 
should be made for supportive services similar to those available 
to refugees. We estimate this group will number around 40,000 
annually. 

b. The balance of the Third Category should be 
based on a point system with weighted points given for the 
following: education, skills and experience — especially if there 
is shortage of such skills in the U.S.— entrepreneurial ex- 
f)erience, and managerial experience. We estimate this group 
will number around 1 10,000 annually. 

C. FamBy Reunification 

The simplest way to clear up existing backlogs is by 
remedial legislation. There is precedence for such action by Con- 
gress since it has been done on several occasions prior to 1%5. 
We recommend that this be done for all relative categories. 

In order to avoid lengthy waiting periods in relative 
preference categories in the future, we also recommend: 

1 . A time limitation Cie., two years) should be placed 
on how long beneficiaries and their families would have to wait 
for a visa number. 

2. Section 101(b) with regard to definition of im- 
migration privileges derived through a "child" should be 
redefmed to specifically include out-of-wedlock children 
through the father as well as through the mother. This would 
be in accord vrith modem day thought as enimciated in fVeber 
V. Aetna Casually and Surety Company. 406 U.S. 165, where 
Justice Powell stated that the alleged interest in legitimate 
families is not preserved in discriminatory classification of il- 
legitimate children. He stated that obviously no child is respon- 
sible for his birth and that penalizing the illegitimate child was 
an ineffectual as well as an unjust way of deterring the parents 
from non-marital relationships. 

3. Lawful permanent residents should be permitted 
to petition for parents and be entitled to preference status. 

4. Section 203(a)(9) provides that a spouse or child, 
if not otherwise entitled to an immigrant visa with a parent or 
accompanying spouse, who receives a visa under paragraphs 1 
through 8 of Section 203(a) is eligible for the same status as the 
parent. In drafting this provision, Congress inadvertently omit- 
ted conferring the same right, and admittedly higher immigra- 
tion status under Section 201(b), to the parents of a U.S. 
citizen. Thus, we have the incongruity that a citizen who is peti- 
tioning for a brother or sister may have his niece and nephew 
accompany the brother or sister. But if he is petitioning for his 
father or mother for immediate relative status, he cannot have 



his brothers and sisters, even if minors, accompany them, and 
must resort to separate petitions for his siblings under the 5th 
preference. In Chinese cases tiie 5th preference is some six 
years behind. Section 201(b) or its new counterpart ought to be 
amended to include minor children of the parent who is being 
petitioned for by the United States citizen son or daughter. 

5. The situation of backlogs for the British Colony 
of Hong Kong is quite serious today. For natives of Hong 
Kong, there is an approximate 12-year wait for married 
children and siblings of United States citizens. Spouses and un- 
married children of lawful permanent residents from Hong 
Kong face a backlog of four to five years. The situation in 
Hong Kong has developed because, as a colony of Great Bri- 
tain, it is entitied to only 600 visas aimually. 

The sub-quota system for colonies was racist in con- 
cept when it was made a part of the 1952 Act. At that time, 
many African, Asian and Caribbean countries were then col- 
onies of European mother countries. This sub-quota was a 
device used to linut African, Asian and Caribbean immigration 
from those colonies. Since then, all but a handful of colonies 
have become independent and now have their own national 
limit of 20,000. 

However, backlogged conditions could be eased sig- 
nificanUy by permitting Hong Kong to use unused visas of 
Great Britain. Thus, no actual expansion of numerical limita- 
tions is needed to remedy this situation for Hong Kong and to 
prevent future backlogs. 

D. Refugees 

Since the fall of Viemam and Cambodia in the spring of 
1975, several hundred thousand Indochinese refugees have 
entered the U.S. under a series of programs based on the parole 
authority as authorized by the Attorney General. This situation 
arose because of the numerical and other limitations on the sev 
enth preference conditional entry category. Legislation allowed 
eligible Indochinese parolees to adjust to permanent resident 
status. 

ResetUement of Indochinese refugees proceeded under 
the Indochinese refugee program as authorized by the In- 
dochina Migration and Refugee Assistance Act of 1975. 
Although the Indochina refugee program was scheduled to ex- 
pire in 1977, it was extended on a four-year phaseout basis. 
(The phaseout was subsequentiy suspended and the In- 
dochinese Refugee program was authorized at the full funding 
level through the duration of Fiscal Year 1979.) 

The recent enactment of the Refugee Act should pro- 
vide the framework for a new and more equitable policy 
governing the admission and treatment of refugees. Within the 
overall structure set out by Uie Refugee Aa, however, tiie ac- 
tual implementation of the purposes of the legislation will 
greatiy affect its ultimate success. 

Prior to the enactment of the legislation, the U.S.-Asia 
Institute sponsored a Conference with over 150 community 
leaders at the State Department on August 15, 1979, in the fu^ 
nationwide effort to address the full range of issues raised by 
the flow of refugees from Indochina. The community leaders 
made a multitude of valuable comments and suggestions in the 
course of the discussions and diuing workshops on these sub- 
jects. 

The group expressed its strong support for the Presi- 
dent's policy on refugees. A checklist of the most significant 



182 



views and suggestions offered by the Conference participants 
follows. Although some of these suggestions relate to matters 
other than immigration, we have included the full list because 
we feel it is constructive to cover all areas of concern to the In- 
dochinese community. 

Foreign Policy Consideradons 

The U.S. should deal with the principal causes of the 
problem by: 

Focusing international attention on Vietnam's role 
in Indochiiia; 

Statements of strong condemnation from top Ad- 
ministration officials; 

A UN meeting to pressure Vietnam to treat those 
under its control more humanely; 

Urging bilateral and multilateral donors to cut off 
economic assistance; 

Continuing the U.S. policy of non-recognition of 
Hanoi. 

Emigration and Asylum 

Press for orderly flow from Indochina; 

Give higher priority to: extended families, prisoners 
released from Vietnam, Cambodian refugees in Viet- 
nam; 

Provide economic assistance to countries of first 
asylum; 

Continue 7th Fleet rescue efforts; 

Assist in efforts to curtail and punish pirates who 
prey on refugees. 

Resettlement 

Liberalize U.S. naturalization requirements (e.g., 
eliminate requirement for two character witnesses); 

Additional resources for INS and HEW to expedite 
processing of refugees; 

Greater cooperative efforts between U.S. agencies 
and community efforts; 

Strengthen coalition of indigenous Indochinese com- 
munity groups in support of refugees; 

Employ Indochinese personnel with INS; 

Establish refugee information centers; 

Consider special $1.00 tax check-off on IRS forms 
for refugee support; 

Have a research component built into the INS struc- 
ture to conduct scientific study of refugee problems; 

Support revised INS Act; 

Improve local coordination among agencies; 

Establish a refugee job information bank; 

Give more responsibility to local agencies for fund- 
ing; 

U.S. officials should travel to major centers of 
refugee settlement for conferences similar to the 
above mentioned August 15, 1979 Conference at the 
State Department. 



E. Other— Investon, Professionals, SkiD 
Qualiricatloni 

Investors, currently unable to enter as immigrants, 
are a desirable addition to the American economy and com- 
munities. They bring capital, ambition, vitality and en- 
trepreneurial skills. In cities all over the United States, small 
business enterprises of recent new immigrants are revitalizing 
whole inner city neighborhoods which for many years have 
been on the decline. Investors should therefore be encouraged 
to come as immigrants. 

In addition, backlogs in the 3rd and 6th preferences 
and nonpreference categories, plus the stringent labor certifica- 
tion process have very nearly eliminated immigrants from 
entering in other than family preference categories. This cut- 
ting off of non-relative immigrants has two undesirable 
effects: 

1. It tends to limit immigrants from those countries 
which have not sent immigrants to the United States in recent 
times; and 

2. It prevents people with skills which are in short 
supply here from immigrating. 

It is recommended: 

1. That a new non-immigrant category be created, 
for example, the "M" category, whereby an individual be 
allowed to enter the United States upon a prima facie showing 
of an investment in a business with a minimum capital invest- 
ment of $50,000, and the employment of two U.S. citizens or 
lawful permanent resident workers. At the end of two years 
subsequent to receipt of the "M" visa, the applicant would be 
eligible for lawful permanent residence. This would deter those 
businesses that are marginal and in most instances would 
default within a two-year period. 

2. That significant numbers of aliens be permitted 
to immigrate without regard to family relationships or offers of 
employment. 

3. That the present labor certification process be 
greatly simplified and its purpose altered to that of simply 
assuring that non-relative immigrants do not possess skills 
which are in overabundance in the United States. Considera- 
tion should be given for a point system in which criteria are 
meaningful. 

The Canadian point system, we feel, places too 
much emphasis on the applicant's pecuniary assets, education, 
linguistic ability to speak English or French, and prospective 
employment or place of employment. This type of point 
system would discriminate against prospeaive immigrants 
from non-English-speaking areas and would also discriminate 
against applicants from low socio-economic levels, who should 
be given a fair opportunity to immigrate to the United States to 
uphold the U.S. as a land of opportunity. 



183 



III. NON IMMIGRANTS 

While the American government through the State 
Department has continually advocated an open-door policy for 
foreign companies to invest in the United States, and have em- 
braced the theory of expanded investments and trade with 
foreign businesses, the fNS, under the Department of 
Justice — in the Western region particularly — and certain em- 
bassies and consulates under the State Department have taken 
a contradictory position, laced with a strong enforcement inter- 
pretation of existing regulations. 

Section 101(a)(15)(e> and Secuon 101(a)(15)(l) of the 
Immigration and NationaUty Act were enacted to facilitate 
the establishment of foreign businesses in the United States 
and the admission of essential foreign persoimel. The spirit 
and letter of the laws related to non-immigrant business in- 
vestments, trade, and admission of essential personnel, were 
intended to encourage individuals and companies to invest 
in trade with America. 

The INS and certain American consulates have, as 
stated, issued severe restrictive enforcement guidelines, have 
viewed the mentioned laws as restriaive in nature, and in- 
tended to limit foreign business investments except for the 
largest multi-national corporations. Their rationale is that 
they are protecting the American labor market. It must be 
remembered, however, that foreign businesses employ 
coimtless American workers, pay taxes, and help to alleviate 
the balance of payments by their continued interaction with 
foreign operations. 

The spirit and letter of the law is clear, and that is to 
encourage the investment of foreign capital into the United 
States. Neither the INS nor the individual American con- 
sulates have been mandated with the power to legislate or to 
interpret laws enacted by Congress, or to interpret treaties 
agreed upon by the respective signatories. It is strongly urg- 
ed that the spirit and letter of the laws pertaining to non- 
immigrant business interests be explicitly stated to en- 
courage £md facilitate active foreign business interest and 
their personnel into the United States. The mentioned laws 
should be given a broad interpretation that would be 
positive for these business interests, as they are also in the 
best interest of the American people 

Remarks in this section are confined to specific issues 
which have caused problems for various classes of non- 
immigrant visitors from Asia, and in particular, Japan. The 
expanding trade, business and cultural relationships bet- 
ween Asian nations and the U.S. have been significantly af- 
fected by these problems. 

A. Extension of Visas 

The arbitrary and unreviewable denial of extensions 
for B-1 (Business Visitors) visas has resulted in severe finan- 
cial losses to negotiating foreign and domestic companies. 
Extensions should be granted to B-1 visitors consistent with 
their business purpose, and denials of extensions of all 
visitors' visas should be accompanied with a notice of find- 
ings and an opportunity to submit evidence at a hearing. 

Treaty traders (E-1) and Treaty Investors (E-2) visas 
are extended in one-year increments for an indefinite f)eriod. 



There is no reason not to grant such persons "duration of 
status" visas commensurate with their intended purpose in 
the U.S., and subject to submission of annual status reports 
to INS. This system has been a successful method for hand- 
ling foreign students and has substantially reduced INS 
workloads. 

B. Foreign Entertainers (H-1 Visas) 

H-1 temporary workers are persons of "distinguished 
merit and ability", a term which is ill-defined and has 
resulted in slow and improper adjudications by INS with 
regard to foreign entertainers who are not generally well- 
known in the U. S. Huge financial losses have occurred, per- 
formances cancelled, and the industry badly affected. 
Bureaucratic delays are pjulicularly unjustifiable with 
regard to eminent foreign entertainers who are in the U.S. 
for short periods and whose interests would not be served by 
remaining here past their scheduled time for departure. It is 
recommended that H-1 visa petitions of foreign entertainers 
be adjudicated in the United States, or at consular posts in 
the home country of the applicants, where adjudicators will 
be much more familiar with the applicant's credentials. At 
the same time, consular adjudications must be made 
reviewable as discussed on page 19 herein. 

C. Intra-company Transferees (L-1 and Definition of 

Affiliates) 
For purposes of permitting intra<ompany transferees, 
the definition of an "affiliate" company has become confused 
and uncertain due to differing interpretations among the fNS 
regions. A uniform definition which conforms with contem- 
porary international business standards will reduce the losses 
which have resulted from curtailed expansions of business 
operations which this confusion has caused. 

D. Change of Statns— Notice of Findings and Right to 

Hearing 

There have been many instances where visitors from 
other countries have been admitted to the U.S. for various 
non-immigrant purposes, and have subsequently decided to 
change from one non-immigrant classification to another. An 
example is Japanese corporations doing business in the U.S. 
who offer employment to qualified foreign students after 
graduation to fill managerial or skilled positions within the cor- 
poration. This situation often occurs when bilingual skills 
along with management or other skills are required. 

To satisfy INS regulation pursuant to Section 248, it is 
necessary to make a request for a change in visa classification 
to, in many cases, an E-1 classification from the INS. Only 
after an applicant's case is denied is an applicant or his pros- 
pective employer afforded a right to rebut the INS position. 
This lack of notice before denial has discouraged many com- 
panies from seeking highly qualified personnel easily accessible 
to them. They have been forced to incur the additional expense 
of transferring additional personnel from their company 
operations abroad. 

A more equitable policy would be to issue a notice of 
findings and to allow the applicant an opportunity to appear to 
present evidence prior to final adjudication. 



184 



IV. ISSUES OF PARTICULAR CONCERN TO ASIAN/ 
PACIFIC AMERICANS 

A . DocumentatloD for Chinese (Vital Statistics) 
Due to an historical lack of birth and marital records in 
mainland China. Chinese in the United States today seeking to 
be reunited with family members abroad experience con- 
siderable difficulties in petitioning for their relatives. 

For most non-Chinese, the process is simple. If the rela- 
tive abroad falls in an immediate relative or preference cate- 
gory, a petition is filed at INS with evidence of the relationship 
in the form of birth certificates, marriage certificates, family 
registries. 

In contrast, when a Chinese person files such a petition, 
since such documentary evidence is not available, a long list of 
"secondary" evidence of the relationship must be submitted to 
INS in support of the petition, or else the petition will be 
returned to the petitioner. The secondary evidence required 
usually takes the form of photographs, old correspondence, 
school records, money receipts, affidavits, blood tests, and old 
Hong Kong documents if Hong Kong was ever a place of 
residence. The burden to produce this evidence has always 
fallen on the shoulders of the petitioner. More often than not, 
the petitioner is advised to correspond with the relative abroad 
and to request the relative to obtain documents in China. The 
request is extremely difficult for the mainland Chinese to meet 
and is exuemely unreasonable and unfair given the fact that 
most of those relatives remain in small villages and are not par- 
ticularly mobile or familiar with formal documents. This also 
results in an added delay in processing time for Chinese peti- 
tions. 

Normalization with mainland China has not, for the 
most part, alleviated these problems. The large numbers of 
emigrants recently from China are generally persons who have 
been beneficiaries of approved petitions for five to ten years. 
Many thousands were permitted out of China immediately 
after normalization but are now stranded in Hong Kong 
because of the terrible backlogs that have been created for 
natives of China. For others seeking to leave China today to 
join relatives in the United States, the problems with proof of 
relationship remain the same. 

There are many inconsistencies in the secondary 
evidence situation. Often INS examiners do not realize that a 
document produced by one petitioner is not easily obtainable 
or was never possessed by other petitioners. INS examiners 
themselves catmot give a definitive list of what wU be required 
of given petitioners. We recommend that INS issue Operating 
Instructions which recognize the difficulty of obtaining secon- 
dary evidence and which establish definitive guidelines for the 
production and evaluation of such evidence. 

B. FiUpino War Vets and FMG's 

During Worid War II, thousands of individuals who 
were natives of the Philippines, England, Iceland, North 
Africa, and the islands of the Pacific fought in the Armed 
Forces of the United States. In 1942, Congress extended the 
benefiu of United States citizenship to those individuals 
through an amendment to the Nationality Act of 1940. Be- 
tween 1943 and 1946 naturalization examiners, appointed to 



confer those benefits on noncitizens outside the jurisdiction of 
naturalization courts, traveled from post to post through 
England, Iceland, North America, and the islands of the 
Pacific naturalizing thousands of foreign nationals pursuant to 
the mandate of Congress. 

The story of the Phihppines was different. After the 
Japanese occupation in the Philippines had ended, the Ameri- 
can Vice Consul was authorized to commence naturalization 
proceedings in 1945. However, in response to the Philippine 
Government's concern that Filipino men would leave their 
native country after being granted United States citizenship, 
the INS soon after recommended to the Attorney General that 
authority to naturalize be revoked in the Philippines. The At- 
torney General approved the recommendation on September 
26, 1945, and the authority of the Vice Consul to naturalize 
alien servicemen immediately stopped. Because of this action, 
there were no authorized naturalization representatives in the 
Philippines. With no means available to become naturalized, 
most Filipino servicemen lost their opportunity to apply for 
U.S. citzenship. 

In 1973, the United States Supreme Court dealt a dev- 
astating blow to these Filipino veterans of the Commonwealth 
Army and Philippine Scouts who had served so valiantly for 
the United States. In INS v. Hibi. 414 U.S. 5 (1973), the Court 
denied the naturalization petition of a veteran because he had 
not filed by December 31 , 1946, when the relevant law expired, 
even though the United States had failed to inform him of his 
right to citizenship and had failed to place a naturalization of- 
ficer in the Philippines during a long critical period. In this 
regard, the Court determined that there had been no "affir- 
mative misconduct" on the part of the government. 

Armed with new legal theories and additional evidence of 
"affirmative misconduct", a group of Filipino war veterans 
again sought naturalization benefits in 1975. In Matter of 
Naturalization of 68 Filipino War Veterans, 406 F.Supp. 931 
(N.D. Cal. 1975), a federal district court judge found that eight 
of the petitioners had demonsuated clear evidence of affir- 
mative misconduct, viz., evidence that they had indeed attemp- 
ted to apply for naturalization prior to December 3 1 , 1946, and 
either no action was taken on their applications, or they were 
told that no action would be taken on their applications. The 
district court found that although 53 of the petitioners had not 
taken timely steps to be naturalized before December 31, 1946, 
they had been denied due process of the law by the Govern- 
ment's failure to station in the Philippines a representative of 
INS authorized to naturalize members of the American armed 
forces, as had been done in other parts of the world. 

Such a position serves as sad commentary to the aban- 
donment of Filipinos who came to the aid of the United States 
in time of war and who, in many cases, fought side by side with 

Americans. 

The 1976 legislation requiring Foreign Medical 
Graduates (FMG's) to take either the VQE (Visa QuaUfying 
Exam) or Parts 1 and II of the National Boards before obtain- 
ing permanent residence was inserted in a bill "to promote 
quality health services." The impact was felt almost entirely by 
Asian doctors from the Philippines, Taiwan, Hong Kong, and 
India who had come to the U.S. as exchange interns and 
residents to staff U.S. hospitals at a time when their services 
were critically needed to fill the voids in many understaffed 
facilities. 



185 



Many of these doctors had passed state medical boards, 
established medical practices, and applied for permanent 
residence under Section 203(aK3), third preference status. 
Because of the backlogs in the third preference category — par- 
ticularly for those bom in the Philippines — many doctors with 
approved petitions were waiting for adjustment of status when 
the law was passed. Although they had been admitted to prac- 
tice, they would be required to take the Parts I and 11 of the 
National Boards, which are usually taken by second and third 
year medical students. An analagous situation would be to ask 
a lawyer who had been admitted to practice more than five 
years earlier to take the bar exams all over again. 

We recommend that Congress pass a savings clause 
which would exempt doctors, who had already been admitted 
to practice in their respective states on the effective date of the 
law, from the requirement of taking the VQE or Parts I and II 
of the National Boards for permanent residence. 

C. Korean atlzens Employed by the U.S. Anny in 
Vietnam 

There exists a substantial number of Koreans who were 
employed by the United States Army in Vietnam, as civilian 
workers, and were thereafter paroled into the United States as 
Vietnamese refugees upon the fall of Saigon. These people 
were paroled into this coimtry for an indefinite period of time 
with employment authorization. However, even though these 
Koreans entered with the Vietnamese refugees they were not 
eligible for subsequent adjustment of status to lawful per- 
manent residence. 

The Koreans in this situation are not Vietnamese nation- 
als but are citizens of Korea as indicated on their parole docu- 
ment. Their families are in Korea and they consider Korea their 
homeland. Although they legally reside in this country and can 
be employed here, they are not permanent residents and catmot 
[>etition for their families, therefore causing a disruption in the 
family imit. Most of the Koreans have lawfully resided in the 
United States for many years and established themselves as 
part of the fabric of this society. Therefore, the most equitable 
treatment of these individuals is to permit them to apply for 
permanent residence in the same maimer as Vietnam refugees. 

D. Language Problems in Natiiralization 

The English literacy requirement prevents substantial 
numbers of elderly Asian/Pacific immigrants from naturaliza- 
tion, and thus denies them the right to vote, to be free from 
numerous grounds for deportation, and to hold any Federal 
and many State and local civil service positions. We feel that 
there is ample justification for eliminating this requirement for 
citizenship based on the following facts: 

—There is no Constitutional requirement for English 
literacy and indeed, the literacy requirement tends to defeat the 
efforts of the framers of the Constitution to insure diversity 
among the states. 

— Most non-English-speaking immigrants participate 
fully in their communities, and are able to remain abreast of 
current events through non-English media. 

— Congress, in its 1975 amendments to the Voting Rights 
Act, endorsed a policy of participation in government by non- 
English proficient citizens by requiring state and local govern- 
ments to publish ballots and other voting materials in non- 
English languages. 



Although there is now a statutory waiver of the English 
literacy requirement for petitioners over age 50, there is an ad- 
ditional requirement that such a petitioner have been a lawful 
permanent resident for 20 years. This latter requirement effec- 
tively excludes large groups of immigrants, such as elderly 
Chinese who have lived in the U.S. 40 or more years but who 
have adjusted their status less than 20 years ago. 

Accordingly, it is recommended that: 

1. The waiver for elderly be amended to require a 
shorter period of presence in the U.S. if the applicant entered 
at an advanced age. 

2. Short of statutory amendment, the INS minimize 
the adverse impaa of this requirement by: 

a. Recognizing a certificate of completion of an 
English as a Second Language course in lieu of an examination 
for English proficiency; 

b. Conduct examinations for knowledge of 
American history and government in the applicant's native 
language. 

E. Exdusion of Permanent Residents Receiving SSI 
and the Reentry Doctrine 

A situation which developed in the summer of 1978 
serves as an excellent example of present INS policy which 
discriminates solely against Asians as a matter of discretion. 

In August of 1978, immigration inspectors in Honolulu 
began a systematic interrogation of elderly Asians many of 
whom had been lawful permanent resident aliens of the United 
States for many years. They were generally returning from 
visits abroad which were no more than 30 days in length. The 
interrogation in Honolulu has gone far beyond the customary 
questioning as to purpose and length of stay. Rather, it focuses 
on whether or not such Asians are, or have ever been, recipi- 
ents of Supplemental Security Income (SSI) public assistance 
benefits. SSI is a subsistence program for the elderly and 
disabled needy persons made available to citizens and lawful 
resident aliens alike. If SSI has ever been received by the 
returning alien, immigration inspectors take possession of the 
person's alien card and passport, and instruct the person to 
report for further inspection and interrogation in the INS 
distria office of residence, e.g., Los Angeles, San Francisco, 
Seattle, Boston. At the subsequent inspection, these elderly 
Filipinos, Chinese, Koreans, and Japanese are informed that 
they are excludable from the United States under Section 
212(aK15) of the Immigration and Nationality Act as "public 
charges." They are generally given three alternatives: go back 
to their native country, request an exclusion hearing, or ter- 
minate SSI benefits and post a public charge bond of 
$5,000.00. 

It is important to note that the INS is dealing here with 
returning permanent resident aliens and not with first-time im- 
migrants or with undocumented aliens. The supposed authori- 
ty for INS to reimpose the public charge grounds for exclusion 
each and every time a lawful alien reenters the United States 
stems from a concept termed the "reentry doctrine." (See Sec- 
tion VI A for a separate discussion of the "reentry doctrine.") 
However, the reentry doctrine heretofore has not been used to 
exclude returning resident aliens who have sought public 
assistance. It is merely a matter of relatively new policy on the 
part of the INS instituted in the summer of 1978 which has 
brought about this result. 



83-514 0-81-13 



186 



In the more than 500 reported cases, there has been no 
question that the person had a right to apply for and to receive 
SSI under Social Security Administration regulations. There 
have been no allegations of fraud. It is equally clear that if 
these persons had not proceeded abroad, they could not have 
been deported under INA Section 241(aK8). Under SSI rules, 
recipients arc permitted to leave the country for periods up to 
30 days without affecting SSI eligibility and, indeed, in many 
instances the persons have been informed by Social Security 
representatives prior to departure that there was nothing to 
worry about. However, these persons have unwittingly walked 
into the trap of the reentry doctrine — a trap never previously 
set for lawful permanent residents receiving public assistance. 

Although former INS Commissioner Castillo issued 
guidelines in May of 1979 to deal with these cases on a more 
humane level, and one such alien has successfully appealed his 
case to the Board of Immigration Appeals, the guidelines and 
recent cases have been ignored by immigration officials in 
Honolulu where the root of the problem exists. The harass- 
ment of elderly Asians continues there while such questioning 
has not been directed to other irrmiigrants at other ports. 

As previously noted, this procedure marks a sharp 
change from previous INS policy throughout the country. This 
simply has never been done before, and even today is not hap- 
peiiing in other pans of the country. (There have been five or 
six cases reported that arose in San Francisco. All of the aliens 
involved were elderly Asians.) Because most lawful permanent 
resident Asian travelers return through Honolulu, the impact 
of the new policy has fallen squarely on elderly Asians only. 
The action has caused great alarm in Asian communities 
throughout the U.S. 

Neither racism nor discrimination based on national ori- 
gin finds impetus in the present language of the Immigration 
and Nationality Act, but the exclusion of elderly Asian SSI 
recipients is a vivid example of selective enforcement. INS of- 
ficials in Honolulu (and San Francisco) should be ordered to 
stop their questioning of elderly Asians on the issue of SSI. 

F. Use of Special "Chinese Unit" in INS 

Another example of discrimination by the INS is the 
"Chinese Unit" within the examinations section of the San 
Francisco District Office which handles all Chinese immigrant 
visa applications, strictly scrutinizing and consequently delay- 
ing the processing of such applications. The reason given by the 
INS spokesman for the existence of this unit was "the long 
history of fraud in such applications from Chinese." While not 
denying the past existence of such fraud, we note that it occur- 
red during a period of virulent discrimination against Chinese 
when there was no possibility of entry by Chinese without such 
fraud. These conditions no longer prevail and this special pro- 
cessing unit is no longer justified. 

Governmental agencies which administer immigration 
laws must remain constantly aware of the tendency for legal, 
benign discrimination to become insidious and unjustified. In 
the SSI example, the fa« that only one port of entry adopted 
the exclusionary policy had a biased impact on particular Asian 
groups. In the Chinese Unit example, a practice once justified 
by circumstances has been carried over beyond its useful life 
and has become a destructively discriminatory practice. Fed- 
eral agencies must affirmatively act to avoid such conditions, 
and should structure a watchdog mechanism with liaison to 
communities to avoid this kind of bias. 



G. Amnesty and t'jnp\oytt Sanctions for Illegal 
Immigrante 

Undocumented aliens in the U.S. have, as a group, made 
substantial contributions to the economic and social growth of 
the United States. At the same time, they are in a very vulnerable 
and insecure situation because of their illegal status. We support 
the legalization of all such aliens who entered the U.S. as of a 
date as current as practicable, up to the date of the reconrunenda- 
tions of the Select Commission for such legislation. 

Care must be taken in designing such a legislative pro- 
gram to include not only those who entered without documen- 
tation, but those who entered legally but have overstayed their 
visas. 

While we recognize the need to take steps to discourage 
future illegal entries to the U.S., we do not support the imposi- 
tion of sanctions for employers who knowingly hire illegal 
migrants. Even with safeguards such sanaions would in- 
evitably lead to employers viewing Asians, Hispanics, and 
those with foreign accents with suspicion, and to a reluctance 
to hire such persons. 

The key to discouraging the hiring of illegal migrants is a 
firm commitment on the part of the Federal Government to ef- 
fectively enforce existing laws with regard to wages, hours and 
working conditions. Without this firm commitment, no pro- 
gress in discouraging employment of illegal migrants can be ex- 
pected regardless of any new sanaions on employers. Strict en- 
forcement of existing work standards should therefore be tried 
as a means of discouraging such employment before any con- 
sideration is given to establishing new grounds for sanctions. 

In the event that any employer sanction system is enacted, 
it must be accompanied by a system whereby an alien or em- 
ployer may readily and speedily obtain official proof of eligi- 
bility to be employed. Some of the criteria to be used in issuance 
of these documents of eligibility to work should include (1) the 
applicant has an application for permanent residence pending 
before INS or (2) the applicant has an approved visa petition in 
which the projected waiting time is less than two years. 

H. Binding Afndavits of Support and SSI Eligibility 

HR 3236, an act to amend Title II of the Social Security 
Aa to provide better work incentives and improved account- 
ability in the disability area was passed by the House and sent 
to the Senate. There, two very significant amendments relating 
to the immigration process and the rights of new immigrants 
were added to the bill and passed by the full Senate by a vote of 
92-0. The bill has been sent to conference where the amend- 
ments will be reviewed. 

The first amendment — Section 504 — of the act provides 
a three year residency requirement for SSI eligibility. Included 
are safeguards against certain unforeseen medical problems. 

The second amendment— Section 601— amends the Im- 
migration and Nationality Act to require legally binding af- 
fidavits by sponsors. The amendment contains safeguards 
against certain imforeseen medical problems and unforeseen 
financial problems of the sponsor. 

We support the elimination of abuse of SSI by new immi- 
grants whose sponsors have adequate means to support them. 
However, we feel that the two Senate amendments are unduly 
harsh. Instead we advocate HR 4904* which provides that the 
income and assets of the sponsor are deemed to be income and 
assets of the alien SSI applicant. This is a more himiane bill 
and will not cause protracted immigration processing which 
would be detrimental to family reunification. 



•After ihe drarting of this paper. Congress passed the provision. 



187 



V. IMMIGRATION PROCESS AND ADMINISTRATION 

A. Commitment Needed for a More Effective INS 

Recently, the Immigration and Naturalization Service 
has been the subject of Congressional and public scrutiny. Re- 
cent disclosures of inefficiency, corruption, and brutality have 
resulted in low public esteem as well as low INS employee 
morale. Instead of attempting to discuss all the problem areas, 
this section focuses on several of the more basic issues in INS 
organization and administration. 

1 . The problem of inefficiency is due in part to the 
fact that the administrative structure of thelNS is laid out ac- 
cording to an antiquated statute, which delegates responsibility 
to three government agencies. The Department of Justice is 
charged with the administration of the immigration and na- 
tionality laws concerning aliens in the United States (Section 
103), while the State Department administers immigration and 
nationality laws relating to those aliens outside the United 
States. The Labor Department's role is to approve or disap- 
prove labor certifications in cases of aliens eligible for 3rd, 6th 
and nonpreference visas (Section 212(a)(14)). 

The difficulties in operating under such a frag- 
mented INS system have been exacerbated by the lack of Con- 
gressional and Administration support to the agency, despite 
its growing responsibilities and caseload, and serious enforce- 
ment problems. 

The weak administrative structure of the INS has 
led to a number of problems: 

— dupUcation of effort and Inconsistency in rul- 
ings — The issuance of a visa, whether immigrant or nonim- 
migrant, by the American consul can be challenged by the INS 
inspeaor at the port of entry (Section 221(h)). On the other 
hand, approval of a visa petition by the Immigration and 
Naturalization Service pursuant to Section 204(b) can be 
frustrated by the American consul who may refuse to issue a 
visa on the basis of nothing more than that he "has reason" to 
believe that such alien is ineligible for such visa (Section 
221(g)). Such duplication and inconsistent rulings even affect 
United States citizens. Chinese who have been documented by 
the Department of State, after exhaustive investigations, as 
derivative United States citizens through the issuance of a 
passport have been effectively denied the right of citizenship by 
the INS, which holds that the issuance of a passport and the in- 
itial admission by the INS of that person as a citizen does not 
necessarily establish that person's citizenship when he later 
petitions for a relative. (Matter ofH-H, 3 ISiN 680). 

— delays, lost files and other problems In case pro- 
cessing — The present fragmented system of administering the 
inunigration laws leads to intolerable delays. For example, 
aliens who are eligible for waivers on grounds of exdudability 
such as previous deportations, convictions of crimes, prostitu- 
tion, fraud and misrepresentation, must interrupt their ad- 
ministrative processing before the consular officers while the 
waiver applications are referred to the INS for decision. This is 
time consuming and intemiptive of orderly process in the ad- 
ministration of inrniigration laws. 

Lost and misplaced files have been a most serious 
problem, causing delays, wasted staff time, public and 



employee frustration. Computerization and other moderniza- 
tion has only recently been introduced into an agency which 
processes millions of files each year and has contracts with 
millions of clients. 

2. There is a great disparity in certain INS postions 
between job responsibility and job qualifications. This is 
evidenced most glaringly in the adjudicator and the general at- 
torney positions in the Citizenship Unit. Adjudication requires 
a high degree of technical and legal proficiency and involves 
making decisions which profoundly affect the life of an appli- 
cant and his family. Yet these positions are often filled by peo- 
ple with little or no professional backgroimd or training. 

In contrast, the work of citizenship examiners, or 
general attorneys, is largely routine, not demanding of 
technical and legal skills. Recently several INS offices have us- 
ed paralegals to conduct the main part of naturalization inter- 
views under supervision of a general attorney. This is a clear in- 
dication that the level of skills required in the major part of the 
naturalization process does not warrant the services of a pro- 
fessional general attorney. 

3. There is a need for a truly independent immigra- 
tion judiciary. The Immigration Judges in the INS invariably 
and very naturally come from the ranks of INS trial attorneys. 
Some judges who were formerly trial attorneys fmd it difficult 
to drop their prosecutorial attitude. 

Moreover, in order to deal with the large caseload. 
Immigration Judges sometimes rely on trial attorneys for infor- 
mational briefings. We recommend that the inunigration 
judiciary be given more staff support in order to maintain its 
independence. We feel that using a system of law clerks and 
secretaries such as that found in civil courts would be a good 
alternative. 

We also recommend that steps be taken to insure 
that the immigration judiciary be drawn from a broader base 
of qualified lawyers both from within and outside of the INS. 

Recommendations 

1. It is recommended that all the present functions 
of the Department of State, the Immigration and Natiu-aliza- 
tion Service, and the Labor Department, be concentrated 
under one agency, i.e., the Immigration and Naturalization 
Service. This will (1) eliminate the present duplication, waste of 
time, energy and resources, (2) eliminate as much as possible 
conflicting interpretations of the law, (3) eliminate the horrify- 
ing spectre of unreviewable, arbitrary, and conflicting deci- 
sions which may deny American citizens and aliens alike the 
privilege of family revmification. A decision of the INS on visa 
petitions, as contrasted to the American consul's, can be 
reviewed by the Board of Immigration Appeals and eventually 
in the federal courts. 

We strongly urge that immigration and refugee pol- 
icies be recognized as matters of national importance and be 
administered by an agency which should no longer be treated 
as a stepchild of the Department of Justice. The INS must have 
adequate budget and management support in order to accom- 
plish its mission. 



188 



2. Each professional position in the INS should be 
reviewed as to the appropriateness of the qualifications to the 
responsibilities of the job. Where necessary, qualifications 
should be revised or spelled out more explicitly to insure that 
each person's skills are adequately and appropriately used. 

3. Steps should be taken to form the immigration ju- 
diciary from a broader base of qualified lawyers both from 
within and outside of the INS. The immigration judiciary 
should also be given more staff in order to eliminate their 
reliance upon trial attorneys. We recommend using a system of 
law clerks and secretaries such as that used in civil courts. 

B. Labor Certification 

The administration of its portion of the immigration laws 
by the Labor Department has been a fiasco. Most of their deci- 
sions have been reversed in court and the Department has been 
held up to ridicule for its pettiness, nitpicking, and unrealistic 
regulations which are allegedly designed to protea the 
American labor market. The notion that third preference aliens 
and sixth preference aliens, at most a total of 58,000 aliens per 
year, can significantly impact on a labor force of a hundred 
million has led the Labor Department to fashion restrictive, 
confusing, highly technical regulations concerning advertising, 
posting, and recruitment efforts, all of which have made a lot 
of work for lawyers, but which have done little to fulfill the 
Labor Department's purported function. Even the Department 
recognizes this fact. A high-ranking official of the Labor 
Department has stated that the labor cenification program, as 
administered by the Department, has been a "futile waste of 
effort." (See remarks of Richard Schubert, Deputy Secretary 
of Labor, Hearings Before Subcommittee on Irmnigration, 
Citizenship and International Law of the House Committee on 
the Judiciary, 94th Cong., ist Session (Pages 118-120, Feb. 4, 
1975)). 

Recommendatioiis 

We feel that labor certification determinations and decisions 
should be the responsibility of the Department of Labor in- 
asmuch as the numerous court decisions have resulted in a 
body of law which is reasonable and workable. However, we 
feel that the present practice of INS examiners reviewing the 
application for the labor certification is wasteful duplication, 
and should be eliminated as an operating procedure of the INS. 

C. INS Must have Efficient Methods to Replace Lost or 
Misplaced Alien Cards 

One of the most difficult problems confronted by a per- 
manent resident is to replace a lost or misplaced alien card. 
Sometimes INS fails to mail it to the alien at the proper ad- 
dress. The INS considers the issuance of alien registration cards 
low priority and the application for replacement sometimes 
takes one or two years. Therefore, it is recommended that: 

1. A system of address verification cards be 
employed before issuance of the card in order to minimize the 
possibility of losing the card in the mail. 

2. The INS give a higher priority for replacement of 
documents. 

D. Local Law Enforcement Agencies' Involvement in 
Immigration Enforcement 

There are both civil and criminal provisions in the Im- 
igration and Nationality Act. OiJy federal immigration of- 
ficers have the authority to enforce the civil and criminal provi- 



sions. INS has in general requested state authorities to refrain 
from enforcing the criminal sanctions. Nevertheless, the At- 
torneys General of at least two states, California and Texas, 
have informed state and local officers that they feel there is 
such authority on a non-federal level. 

As a result, the state or local officers who are untrained 
in the subtleties of who is rightfully in the United States, often 
violate the rights of lawful aliens or even citizens in attempting 
to enforce the immigration laws. Or even worse, many local of- 
ficers use this authority as a guise to traimiatize Hispanic, 
Asian, African and other ethnic groups. 

We recommend that legislation be passed to explicit- 
ly prevent state and local law enforcement officials from trying 
to enforce any provision of the Immigration and Nationality 
A«. 

E. Waiver of Adjustment of Status Prohibition for 
Aliens Who Worked Without Permission 

Under Section 245(c) a person cannot apply for perma- 
nent residence in the United States, viz. apply for adjustment 
of status without having to exit from the country, if he or she 
has worked without permission prior to filing the application 
for permanent residence. This rule is intended as a punishment 
for having worked without permission. However, it creates an 
unnecessary financial burden on the beneficiaries who must 
travel back to their native countries or Canada. Exception to 
this rule is made for parents, minor children, and spouses of 
United States citizens. However, Section 245(c) does not pro- 
vide for any exceptions for parents, minor children, and 
spouses of permanent residents. Nor does it allow exceptions 
for humanitarian reasons, where, for example, a person must 
work to prevent other family members from seeking public 
welfare assistance. 

It is urged that exception to the exit requirement be ex- 
tended to spouses, parents and minor children of permanent 
residents and that exception for humanitarian reasons be added 
to allow flexibility in situations of great hardship. 

F. Streamlining the Naturalization Process 

Senate Bill 1763 — The Immigration and Nationality Effi- 
ciency Act of 1979 — provides for several revisions to the 
naturalization procedure which we favor. Section 15 of that 
Act modifies certain residency requirements for naturalization. 
It would Edlow the spouse and uiunarried dependent sons and 
daughters, who are members of the household of a lawful per- 
manent resident whose employment requires him to be abroad, 
to receive beneficial treatment with respect to the period of 
continuous residence in the United States required for 
naturalization. Currently such benefits are limited to the prin- 
cipal alien. The Department favors this provision. 

Sections 16, 17 and 18 are key provisions of the bill relat- 
ing to naturalization. They eliminate all references to the re- 
quirement that a F>etitioner for naturalization be accompanied 
by two witnesses when he files his petition for naturalization in 
court prior to a final hearing on the petition. Examination of 
accompanying witnesses is time consuming, unnecessary, and 
unproductive. Witnesses selected by the petitioner are unlikely 
to reveal his faults, if any. Moreover, when necessary, the INS 
can obtain information about the petitioner's fitness for 
citizenship through its own investigation. 

Many district offices have been plagued by backlogs in 
the naturalization seaion. The elimination of the witness re- 



189 



quirement would result in manpower savings, and the time sav- 
ed could be applied to reducing backlogs and to performing 
other more useful functions in the naturalization area. 

Section 19 of the bill eliminates the requirement for a 
thirty-day waiting period between the filing of a petition for 
naturalization and the final coun hearing on the petition. The 
mandatory thirty-day waiting period was intended to assist the 
government in conducting inquiries into the petitioner's 
qualifications for naturalization. However, as a prartical mat- 
ter, all necessary inquiries will normally have been made be- 
tween the day of submitting initial applications to the INS and 
the date on which the applicant is scheduled to appear for a 
preliminary examination and the filing of a petition for 
naturalization. If at any time factors appear which require fur- 
ther investigation, an inquiry will be undertaken and the final 
hearing will be delayed until its completion. The amendment 
will eliminate the need for the applicant and the naturalization 
examiner to make a second trip to court thirty days or more 
after the filing of the petition. 

We recommend that this Art be passed by Congress as 
soon as possible. 



190 



VI. FUNDAMENTAL RIGHTS 
A. Retntry Doctrine 

Background 

The grounds for exclusion under the Immigrauon and 
NaUonaUty Act are numerous and represent years of ad hoc 
Congressional acuons directed at closing the doors of the 
United States to those persons deemed unfit to enter. See Im- 
migrauon and Naturalization Act (hereinafter "INA") Section 
212(a). The grounds for exclusion provide for the denial of en- 
try to aUens. for example, who are criminals, subversives, com- 
munists, insane, polygamists, unhealthy, illiterate, drug ad- 
dicts, or Ukely to become pubUc charges. Thus, even though an 
alien may meet the preliminary quaUfications to immi^ate to 
the United States as an immediate relative of a U.S. citizen or 
by falUng within a preference category, if the alien falls within 
any grounds for exclusion, he wiU be denied admission unless a 
discretionary waiver, avaUable under certain circumstances, is 
granted by the Attorney General. 

Many of these grounds for exclusion can be traced back 
to times in our history when strong feelings of racism and 
political paranoia pervaded the nation. This discussion is not, 
however, an attack on the exclusionary grounds themselves, 
but rather a critique of an immigrauon law docuine— the 
"reenuy docuine"— which relates to the exclusionary grounds 
to deport or deny readmission to lawful permanent resident 
aliens who have temporarily proceeded abroad. 

The "reenuy doctrine" provides that an alien, including 
an alien who is already a lawful permanent resident of the 
United States, (i.e.. in possession of an aUen registraUon card), 
is subject to the exclusionary grounds each and every time he 
enters the United States. Although such a principle is not ex- 
pUcitly stated in the INA, this statutory construction has 
resulted from a reading of Section 101(a)(13) of the INA which 
defines "enuy" as "any coming of an alien into the United 
States," together with Section 212(a) which provides that aliens 
"shall be excluded from admission" if the grounds for exclu- 
sion are not satisfied. The interpretation that every attempted 
"entry" is equivalent to an application for "admission" and 
results in the reentry doctrine has been upheld by the Supreme 
Court in Rosenberg v. Fleuti. 374 U.S. 449 (1%3). 

Thus, a lawful permanent resident who commits an act 
or who falls into an excludable class after initially immigrating, 
although not serious enough for deportation, may nevertheless 
not be readmitted if he leaves the counuy temporarily because 
that aa or class falls within one of the grounds for exclusion. 
This frequency occurs because the grounds for deportation 
under Section 241(a) of the INA are less encompassing and 
more difficult to meet than the grounds for exclusion. 

Examples of the operation of the reenu? docuine are 
plentiful. A lawful permanent resident who is convicted of a 
petty theft is not deportable. However, if he leaves the counU> 
for a vacation and then attempts to return. Section 212(a) of 
the INA would operate to exclude the resident alien. Similarly, 
a permanent resident who, after initial immigration, becomes 
banknipt and needs public assistance cannot be deported; but 
if he leaves the country to visit an ill relative, he would be ex- 
cludable upon return under SecUon 212(aK15) of the INA. See 



e.g.. United Stales ex rel. Minuto v. Reimer, 83 F.2d 166 (2d 
Cir.'l936). 

Even if the facts rendering the returning resident alien ex- 
cludable are not made known to the inspecung immigration 
border officer and the resident alien is readmitted, once the 
facts are made known to immigration officials, deportation 
proceedings can be instituted against the person under Section 
241(aKl) of the INA as one who "at the time of entry was 
within one or more of the classes of aliens excludable by the 

law " Since the reentry of such an individual is, by defmi- 

tion, an "enuy", the cited ground for deportation would apply 
to a returning lawful resident. 

The principles of the reentry doctrine also come into play 
under Section 241(a)(4). Under that section, an alien who U 
convicted of a crime of moral turpitude "conunitted within five 
years after entr>" (emphasis added) may be deported. Thus, a 
lawful pennanent resident of the United States for ten years 
who proceeds abroad, returns, then is convicted of a crime in- 
volving moral turpitude four years after the reentry is deport- 
able under this seaion. This is in spite of the faa that the alien 
may have been a lawful permanent resident for 14 years. See 
e.g.. Munoz-Casarez v. INS. 51 1 F.2d 947 (9th Cir. 1975). 

The harshness of the reentry doctrine was recognized by 
the Supreme Court in Rosenheim v. Fleuti, supra. There the 
Court carved an exception to the strict definiuon of enU7 and 
held that in order for the reentry doctrine to apply, the lawful 
permanent resident must have intended "to depart in a manner 
which can be regarded as meaningfully intemiptive of the 
aUen's pennanent residence." 374 U.S. at 462. However, for 
the most part, the Immigrauon and Naturalization Service and 
the Board of Immigration Appeals has limited the Rosenberg 
V. Fleuti case to its facts, namely, an absence of "about a cou- 
ple of hours" duration. 

The reenuy doctrine should, therefore, be legislauvely 
eliminated from the Immigration and Nationality Act in order 
to effectively eliminate its "harsh consequences" recognized by 
the Supreme Court. The doctrine operates to exclude or deport 
lawful pennanent residents who unsuspectingly leave the 
United States for a brief time. No warning is given to such resi- 
dent aliens who could not be deponed if they had not departed 
from the United States temporarily. It U an anomaly m our im- 
migration laws. See. generaUy, Gordon and Rosenfield. Im- 
migration Law and Procedure. Para. 2.3(e). 

Recommendation 

The reentry docuine can easUy be eUminated legislatively. 
The defmition of "enU7" under Section 101(aK13) of the INA. 
8 U.S.C. §1101(aK13), could be changed to specifically exclude 
the return of lawful permanent residents from temporary 
absences abroad. (Note for example, that for naturalizauon 
purposes. Section 316 of the Act permiu absences of up to six 
months without affecting the residency requirement.) Also, 
Section 212(a) of the INA, could be amended to include the 
following underlined changes: 

Except as otherwise provided inthis Act, the foUowing classes 
of aliens (other than aliens who have been bwfuUy admitted for 
permanent residence and who are returning from temporary 



191 



visit abroad) shall be ineligible to receive visas and shall be 

excluded from admission to the Unites States 

Such a revision would carry out the true spirit of the Supreme 
Court's sentiment in Rosenberg v. Fleuti and eliminate the 
harshness of the reentry doctrine. 

B. Deportation Process 

1. Statute of Limitatioiis 

The present immigration statutes do not provide any 
statute of limitations for deportation. As long as the person is 
not a citizen, even though he may have been a lawful perma- 
nent resident of the United States for twenty-five years, he is 
deportable if he falls within one of nineteen deportable classes. 
INA Section 241(a). See e.g., Lieggi v. INS, 389 F.Supp. 
(N.D.Ill., 1975) reversed without written decision at 559 F.2d 
530 (7th Cir. 1976); Carreon-Hemandez v. Levi, 543 2d 637 
(8th Cir. 1976); U.S. v. fValus, 453 F.Supp. 699 (N.D.IU. 
1978). 

The absence of a statute of limitations is inconsistent 
with the criminal laws of most American jurisdictions. Thus, a 
himianitarian statute of limitations of perhaps five or ten years 
should be included in at least some, if not all, of the deporta- 
tion provisions. 

A basic principle of criminal law and administration 
is a belief in rehabilitation and a policy that a person who has 
conunitted a wrong should not be forever punishable. While 
the immigration laws are considered civil in nature, their effect 
is very severe due to the draconian punishment of permanent 
exclusion from the country and separation from family, except 
in limited circumstances when family members may f)€tition 
for a waiver. Consider the following examples: A person guilty 
of knowing possession of a few grams of marijuana or opiimi, 
although the spouse or parent of a United States citizen, is 
forever excludable or deportable under Section 212(a)(23) and 
Section 241(a)(ll). The ameliorative provisions for convicted 
persons who have been granted pardons or recommendations 
for non-deportation by the sentencing judge do not apply to 
narcotics offenders. Section 241(b). Similarly, persons who 
have committed fraud under Section 212(a)(19), and persons 
convicted for even petty crimes involving moral turpitude, or 
convicted for prostitution under Sections 212(a)(9), (10), and 
(12) are forever excluded regardless of how long ago the crime 
was committed imless they can apply for a waiver because of 
having a spouse, parent or child who is a United States citizen. 

These severe penalties should be ameliorated by pro- 
viding a five-year statute of limitations, so that if a person is 
not eligible for a waiver, after five years the grounds of exclu- 
sion would not apply to exclude or deport the person. This 
would be in keeping with INA Section 246 which provides that 
if a person adjusts his status in the United States under Section 
245, his status is not cancellable on any grounds unless such 
proceedings were commenced before the five year period. 

In addition to the absence of a statute of limitations, 
two additional incongniities exist in the INA. 

An alien who has committed fraud or misrepresenta- 
tion and is excludable or deportable may obtain a waiver if he 
is the spouse, parent or minor child of either a United States 
citizen or a permanent resident alien. See Section 212(i) and 
Section 241(0. Thus, a parent who has an adult United States 
citizen child, may be forgiven for previous fault or mis- 
representation under either Section 212(i) or Section 241(f). 



However, in the converse situation a twenty-two year old son, 
excludable or deportable on fraud groimds, would not be eligi- 
ble for a waiver, because, being over 21, he is not a "child" of 
a United States citizen. This incongruity in the INA has an 
adverse impact on extended families and ought to be remedied 
immediately. 

Prior to 1%5, Section 211(c) gave the Attorney 
General discretion to admit to the United States an otherwise 
admissible alien who was technically inadmissible because of (i) 
a defertive visa, (ii) being charged to the wrong quota, or (iii) 
an improper status, often due to no fault of the alien. When 
the Immigration Reform Act of 1965 was enacted, this provi- 
sion was inadvertently omitted. This has led to the present 
anomaly where a nonimmigrant who has a defective visa may 
be granted a waiver imder Section 212(d)(3), whereas no such 
waiver provision exists to admit an immigrant. 

2. Right to Counsel 

INA Section 242(b)(2) provides that an alien has a 
right to coimsel in deportation hearings, but not at govenmient 
expense. This law operates effectively to deny the right to 
coimsel to indigents unable to secure a volunteer attorney. 
Although the regulations currently require INS authorities to 
advise aliens if free legal services are available, there are many 
areas of the coimtry where such services are not available. 
Many legal aid offices have either decided not to handle depor- 
tation cases or are not equipped to do so. Also, a recently 
enacted amendment to the Legal Services Corporation Act, 
under which most legal aid offices receive fimding, prohibits 
the representation of "illegal" aliens. 

Only one court has given indigent aliens the right to 
appointed counsel, Aguilera-Enriques v. INS, 516 F.2d 565 
(6th Cir. 1975), but only on a limited case-by-case basis. 

The determination of deportability and the possibili- 
ty of relief are complicated issues. Yet the present system 
presumes that an indigent alien unfamiliar with our laws is able 
to cut through the complexities alone. There is no justification 
for this presumption. It is impossible to accept. Adequate 
funding must be appropriated to provide legal representation 
to indigent aliens. Many so-called "deportable" aliens have a 
right to remain in the United States that can be determined on- 
ly after in-depth research and analysis by counsel. If an actual 
defender's program cannot be established, legal services offices 
should, as an alternative, be encouraged to take on the respon- 
sibility of representation by earmarking additional fimds for 
those purposes. 

3. Section 241(f) 

On its face. Section 241(f) is a fair and humane sec- 
tion which provides relief from deportation for an alien who 
committed fraud or misrepresentation to enter the United 
States and who now has a close relative here. That section pro- 
vides a mandatory waiver of deportation based upon visa fraud 
at time of entry for those who are "otherwise admissible" and 
who are spouses, parents or children of U.S. citizens or lawful 
permanent residents. The issue of the proper interpretation of 
this section has reached the supreme Court, Reid v. INS, 420 
U.S. 619 (1975) with no clear resolution, and the differing ad- 
ministrative and judicial interpretations have left the law in a 
state of confusion which makes it virtually impossible for the 
INS to admiitister Section 241(f) uniformly. An amendment is 
proposed in S. 1763 which gives disaetion to the Attorney 



192 



General lo give a waiver, clarifies ihe meaning of the term 
"otherwise admissible", and makes it clear that relief is 
available to those who have made innocent, as well as 
fradulent, misrepresentations. 

We strongly urge its passage through Congress. 

4. Exdusionar)f Rule for megaDy Obtained Evidence 

Claims of uiveasonable searches and seizures in vio- 
lation of the Fourth Amendment are generally unsuccessful in 
deportation proceedings. The Supreme Court has been critical 
of warrantless searches and roving patrols by Border Patrol 
agents. Almeida-Sanchez v. U.S.. 413 U.S. 266 (1973); U.S. v. 
Brignoni-Ponce. 422 U.S. 873 (1975). However, impressed by 
the large estimates of undocumented workers, the Court has 
allowed routine vehicle stops at fixed checkpoints more than 
sixty miles from the border. Maninez-Fuerte v. INS, 428 U.S. 
503 (1976). And although one federal district judge has held 
that the INS must have reasonable suspicion that a person is an 
illegal alien before it can engage in questioning, Marques v. 
Kiley. 436 F.Supp. 100 (S.D.N.Y. 1977), the INS does not ac- 
cept that ruling outside of that district. 

A troublesome issue arises, therefore, if a deport- 
able alien is arrested, or if evidence of deportability is seized, in 
clear violation of the Fourth Amendment Because deportation 
proceedings are considered civil rather than criminal in nature, 
courts have expressed hesitance in applying the exclusionary 
rule in deportation hearings. See e.g., Cabral-A vila v. INS. 589 
F.2d 957 (9th Cir. 1978); c.f., Wong Chong Chee v. INS. 565 
F.2d 166 (1st Cir. 1977). Very recently, the Board of Immigra- 
tion Appeals struck a devastating blow to aliens whose Fourth 
Amendment rights have been violated by explicitly ruling that 
the exclusionary rule does not apply in deportation pro- 
ceedings. Matter of Sandoval, Interim Decision No. 2725 (BIA 
1979). 

Thus, today an order of deportation can be sustain- 
ed even though the alien has been illegally arrested and the 
evidence of deportation is tainted. This is true in spite of the 
fact that a criminal prosecution of the same alien for illegal en- 
try would likely be tossed out of federal district court. 

This result is not acceptable, the situation breeds fur- 
ther abusive behavior by immigration investigators and agents 
whose condua has already resulted in several criminal india- 
ments. Illegal tactics by INS officials are as repulsive as 
analogous police activities, the fruits of which have been tradi- 
tionally excluded. The stakes at deportation hearings are as 
high if not higher than most criminal cases, and the policies 
underlying the exclusionary rule are equally applicable. 

An exclusionary rule should therefore be enacted 
which would exclude all evidence from deportation pro- 
ceedings where the evidence was obtained in violation of the 
alien's Fourth Amendment rights 

C . Review of Consular Decisions 

At present, there is no right of review or appeal from ad- 
verse consular decisions on visa applications. An interested 
party may only request an advisory opinion from the State 
Department Visa Office. 

The rationale for permitting only limited review of con- 
sular decisions has an historic basis which has since become out- 
dated. At the time the Supreme Court held that Congress and 
the United States Government would be the absolute and final 



arbiter in immigration matters regarding persons applying for 
admission as immigrants to the United States without family 
ties and without financial or employment sponsors. Since that 
time there has been incorporated into the immigration laws a 
family relationship preference system which gives United States 
citizens and permanent residents a vital interest in the immigra- 
tion of their parents, spouses, children and sibUngs. In view of 
this interest, it is a denial of due process if there is no legal 
channel for review and appeal from Consular decisions. 

At Ihe present time, under Section 104, an American 
Consul may arbitrarily, without specifying any reasons, refuse 
to issue a visa, even one as important as an immediate relative 
visa to the spouse or parent of an American citizen, and this 
decision cannot be reviewed even by the Secretary of State. The 
power of the American Consul effectively to deny basic rights 
of American citizens and aliens alike, without any possibility of 
review, is a frightening anachronism in the law which can no 
longer be tolerated. The couns in interpreting Section 104 have 
refused to intercede and decisions of American Consuls have 
been held judicially unreviewable even when the Consul 
violated the State Depanment's own regulations in refusing to 
disclose the reasons for the denial of a visa. Buffafalo v. U.S. 
Department of State, 523 F. 2d 555 (2d Cir. 1975). 

Many attorneys have complained of arbitrary and erro- 
neous decisions made by Consular officers. Decisions 
sometimes have included unwarranted comments concerning 
the applicant's demeanor. There have been cases where a Con- 
sular officer has even commented on the applicant's failure lo 
look him in the eye during interrogation, when such lowering 
of the eyes in some cultures can mean modesty or humility and 
should not be interpreted as being a sign of evasiveness. 

We have previously recommended that visa issuance be a 
function of the INS — both for reasons of orderly administra- 
tion of the immigration laws, and also to afford a channel for 
administrative and judicial appeal. If visa processing is to con- 
tinue as a State Department responsibility we recommend that 
serious consideration be given to a system of review and appeal 
from Consular decisions especially in cases where the applicant 
is a beneficiary of a petition submitted by a relative who is a 
U.S. citizen or permanent resident. 



193 



CLOSING REMARKS 

When the U.S.-Asia Institute Task Force on Immigration 
and Refugee Policy sat down to discuss the current immigra- 
tion policies, we immediately recognized the difficulty of 
covering every issue. Therefore, we have tried to cover those 
major areas we felt were most important. 

Much time, thought, and effort went into this Task Force 
paper. However, if we hope to see our recommendations im- 
plemented, we must do more than discuss and write. The Task 
Force, and all others concerned with the direaion of immigra- 
tion policies — regardless of their ethnic heritage — must be will- 
ing to take the time to make our views heard by the Select 
Commission, the Congress, the Administration, INS, and 
State Depahment officials. Only through uniting as a cohesive 
force behind the issues presented can we hope to achieve the 
type of immigration law we desire. 

The United States is truly a great nation— made great by the 
diversity of its people. A fair and equitable immigration law 
will be an instrument of strength to make it even greater. 



NORMAN LAU KEE 
Task Force Chair 



194 

Asian/Pacific American 
National Leadership 
Conference, 1980 

May 21-22, 1980 
Washington, D.C. 



^'1980's: A Decade of Progress 
for Asian/Pacific Americans'' 



US-RSiA 

us -Asia Institute 



195 



Dedication 




iJ ner^ a/)^ m^Oe utno ai/»e wi/tn 
^n^^-ouoA ifie Aa/ndi m^ i€icA ai Ineie 



TOM CHAN 
Chairman of the Board 



We dedicate this Journal of the 1980 Asian/Pacific American National Leadership Conference to our 
friend, and Chairman of the Board of the U.S.-Asia Institute, Tom Chan, in appreciation and remembrance 
of him. 

Tom Chan was many things to many people ... a husband, a father, a friend, a business associate. . . . 
He was a man of dedication, sincerity, warm human compassion, and of vision. 

One of his visions was the U.S.-ASIA INSTITUTE. As a founding Board member and Chairman of the 
Board of the U.S.-Asia Institute, Tom Chan dedicated his time, efforts, and financial support to the 
building of an organization which would work to promote mutual cooperation and understanding between 
the countries of Asia and the United States. 

Tom took pride in everything he did. ... He took pride in his family and in his work. tVloreover, he took 
pride in the U.S.-Asia Institute. It was in memory of this sense of pride that his widow, Nancy Chan Tom, 
established the TOM CHAN MEMORIAL FUND within the U.S.-Asia Institute as a perpetual fund in the 
memory of Tom Chan. This fund, made available through the contributions of Tom Chan's many friends, 
will be used to immortalize Tom Chan's memory in the area of small business. 

"He L/Ved. . . . 

and he brought to this world 
a sense of dedication, truth, and commitment. . . . 

His memory will live on 

in the US -Asia Institute." 



196 



Co Founders Message 




"19S0's: A Decade ol Progress 
tor Aslan/Peclllc Americans." 




JOJI KONOSHIMA 
Co-Founder 



ESTHER Q. KEE 
Co-Foundar 



"The older generation lies paved ttie 
way lor us — ttie suffering, discrimina- 
tion and hardstilps lliey ha»e gone 
tlirougti cannot be measured. We, too, 
can be pioneers, and make a better 
world for our children end ell of those 
less fortunate than you and I." 



Dear Friends. 

The First Asian/Pacific American National Leadership Conference is now history. This Con- 
ference, conceived by the U.S. -Asia Institute Co-Founders many months ago, marks the first time 
Asian/Pacific Americans as a group have come together in a national forum to discuss issues of 
Interest and concern to their community. From these discussions, Asian/Pacific American position 
papers were developed. 

This Journal focuses on the National Leadership Conference, its participants, and its Interac- 
tions. Most importantly, contained herein are Asian/Pacific American position papers. These posi- 
tions are representative of the concerns voiced at the National Leadership Conference, and, in 
turn, reflect the concerns of the broader community. 

We hope you'll take time to review the Journal and to consider the views of the Asian/Pacific 
American constituency represented. We welcome any comments you might have, and look for- 
ward to your support as we move ahead into the "1980's: A Decade of Progress for Asian/ 
Pacific Americans." Thank you! 



Very truly yours, 

Joji Konoshima 
Executive Director 




Esther G. Kee 

Associate Executive Director 



197 



7980 Leadership Conference & 
U.S.-Asia Institute 



THE CONFERENCE 

The Asian/Pacific American National Leadership Con- 
ference, held in Washington, DC. May 21-22, 1980, marks 
the first time Asian/Pacific Americans have come together 
In a national forum to discuss issues of interest and con- 
cern to their community. The Conference, conceived by 
U.S.-Asia Institute Co-Founders— Joji Konoshima and 
Esther G. Kee— many months ago, v^ent through many 
"growing pains" as the Conference Committee structured 
and restructured the format, scheduling and other aspects 
of the Conference. 

After many hours of deliberation and discussion, a uni- 
que format was created by the Committee. Unlike most 
other Conferences, this was one in which members of the 
Asian/Pacific community addressed government resource 
people, followed by responses from the government 
people. This interaction ensured that government 
respondents "listened" to the needs and concerns 
expressed by the Asian/Pacific community. 

From the Workshop discussions at the Conference, 
Asian/Pacific American position papers were developed. 
These positions are representative of the concerns of the 
broader community. r 

This Journal of the National Leadership Conference 
focuses on the Conference, its participants, and its inter- 
actions, as well as the positions taken by those In 
attendance. 



CONFERENCE COMMITTEE 

PRISCILLA CHING CHUNG, Ph.D., Conference Chair, is a 
visiting colleague with the Department of History at the 
University of Hawaii at Manoa. She was a member of 
the President's Commission on Foreign Languages and 
International Studies. 

JOJI KONOSHIMA is the Executive Director of the U.S.- 
Asia Institute. He is also Director of Asian/Pacific 
American Affairs for the Democratic National Com- 
mittee, and is currently engaged in a wide variety of 
political and public service activities. 

ESTHER G. KEE is the Associate Executive Director of the 
U.S.-Asia Institute, and the National Coordinator of the 
Asian/Pacific American Affairs Unit of the Democratic 
National Committee. She is active in numerous political 
and community service organizations. 

DERRICK TAKEUCHI is the former Administrative Director 
of the U.S.-Asia Institute. He is a graduate of George- 
town Law School in Washington, D.C. 

JOANNA REIKO CALLNER is the former Special Projects 
Assistant at the U.S.-Asia Institute. She is a recent 
graduate in English literature from Oberlin College. She 
has a keen interest in Asian/Pacific American affairs, 
and plans to do graduate study in a related field. 



198 



1980 Leadership Conference & 
U.S.-Asia Institute 



THE U.S.-ASIA INSTITUTE 

The U.S.-AsIa Institute's sponsorship of the Asian/ 
Pacific Annerlcan National Leadership Conference was a 
natural progression tor the Institute in its ongoing efforts 
to Involve Asian/Pacific Americans In Ifiis country's social, 
cultural and economic fabric. 

The Institute, a Washington, D.C.-tjased nonprofit 
membership organization, was founded in 1978 with the 
primary mission of developing mutual cultural and eco- 
nomic enrichment, cooperation and understanding 
t>etween people from Asia and America. In working toward 
this goal, the institute has focused on the role and con- 
cerns of Asian/Pacific Americans in the United States. The 
Asian/Pacific American National Leaderstilp Conference 
presented a unique forum for the discussion of tfiis role as 
weii as Issues of Interest and concern to ttie Asian/Pacific 
community. 

Sponsorstilp of discussion forums sucfi as the National 
Leadership Conference is not new to the U.S.-Asia Insti- 
tute. Over the past year and a half, the institute has coor- 
dinated and cooperated on numerous briefings and 
discussions to Increase public awareness of the problems 
and prospects for U.S.-Asia relations. 

Working through its National Advisory Council to the 
East Asian and Pacific Aftairs Bureau in the U.S. Depart- 
ment of State, the institute has given Asian/Pacific 
Americans the opportunity to interact with State Depart- 
ment officials on East Asian and Pacific issues. Specific 
briefing topics have included; U.S.-Japan relations; the 
post-Park Chung Hee situation in Korea; the Philippines; 
the indo-China military situation; and the Indo-Chlna 
refugee problem. Asian/Pacific Americans were also able 
to participate in special regional foreign policy briefings 
conducted by the U.S. Department of State in cooperation 
with the U.S.-Asia Institute. 

In the area of foreign investment, the institute has co- 
sponsored, with the Overseas Private Investment Coipora- 
tlon, a series of regional seminars on investment In the 
developing world. These seminars focused on growrth 
through foreign investment, detailing OPIC programs 
available for new ventures or the expansion of existing 
projects which contribute to host country development 
and help to strengthen the U.S. economy as well. 



In addition to sponsoring face-to-face meetings of many 
types, the U.S.Asia Institute conducts research on impor- 
tant policy matters affecting U.S Asia relations. Research 
findings and recommendations are published in periodic 
reports for use by the public, business and academic com- 
munities, news media, government officials and other 
interested parties. 

The Institute also acts as a clearinghouse for Informa- 
tion on Asian and American cultures, on education, 
employment, immigration, and other topics. A large part of 
the public Information available from the Institute focuses 
on the process. Impact and trends In US-Asian economic 
relations and Its Impact on domestic U.S. Issues. The Insti- 
tute emphasizes the great need for the American and 
Asian publics to understand the interaction of interna- 
tional policies and domestic programs— In fields such as 
education, health, welfare, social security, taxation, and 
regional or community economic development. Further, 
the Institute continues to promote a progressive U.S. 
foreign policy toward Asia and similar policies by Asian 
nations toward the U.S. 



199 



1980 Leadership Conference & 
U.S.-Asia Institute 

JOURNAL SPONSORS 

Special thanks to ttie individuals and corporations who 
sponsored the 1980 Asian/Pacific American National 
Leadership Conference Journal. Without these sponsors' 
support, this publication would not have been possible. 

The sponso'S of this Journal are listed on the following 
pages. A special gold, silver, or blue sponsorship line 
appears at the bottom of each page of the Journal, indi- 
cating the amount of sponsorship. 

GOLD SPONSORS 

(Contributors of $1,000 or more) 

AMERICAN FISH COMPANY 

408 Stanford Avenue 
Los Angeles, CA 90013 

CHIN PO REALTY CORPORATION 

1 1 Mott Street 
New York, NY 10013 

CHINA OVERSEAS TRAVEL 

1 1 Mott Street 
New York. NY 10013 

11 MOTT REALTY CORPORATION 

11 Mott Street 
New York, NY 10013 

FAIRFIELD-MAXWELL LTD. 

Kay Sugahara, Chairman 
277 Park Avenue 
New York, NY 10172 

FUKUI MORTUARY 

707 East Temple Street 
Los Angeles, CA 90012 

HIGHWAY TRADING CO., INC. 

1220 Broadway 
New York, NY 10001 



KEE & LAU KEE LAW OFFICE 

1 1 Mott Street 
New York, NY 10013 

BLOUSE, SKIRT & SPORTSWEAR WORKERS UNION 
Local 23-25 I.L.G.W.U. 

Jay Mazur, Manager-Secretary 
275 7th Avenue 
New York, NY 10001 

METRO CHARLES, CO., INC. 

29 West 30th Street 
New York, NY 10001 

PARKLAND CONSTRUCTION 

Siun Park, President 

1106 West Olympic Boulevard 

Los Angeles, CA 90015 

RICELAND FOODS 

RICELAND RICE, PAGODA, LOTUS 103, 
ORIENTAL STYLE 103 and ORIENTAL 
HARVEST Brand Rice 

Stuttgart, AR 72160 

SILVER PALACE RESTAURANT 

50 Bowery 

New York, NY 10013 

TAI MING DEVELOPMENT CORPORATION 

1 1 Mott Street 
New York, NY 10013 

ROBERT and RUTH WATANABE 

11645 Wilshire Boulevard, Suite 701 
Los Angeles, CA 90025 



200 



1980 Leadership Conference & 
U.S.Asia Institute 



SILVER SPONSORS 

(Contributors of between $500 and $1,000) 

ALLIED OLD ENGLISH, INC. 
100 Markley Street 
Port Reading, NY 07064 

MIKASA 

George T. AratanI 
15711 South Broadway 
Gardena. CA 90248 

ASIAN INTERNATIONAL BROADCASTING 

Producers of "Images." a program focusing on 
the Asian American experience in America 
3459 Redondo Boulevard 
Los Angeles, CA 90016 

JAS. L CUNNINGHAM CO. 

11204 South Western Avenue 
Chicago, IL 60643 

GRAND KAHN ELECTRIC 

13395 Michigan 
Chicago. IL 60605 

HOSANNA, INC. 
325 5th Avenue 
New York, NY 10016 

D. J. KAROS CO. 

832 West Randolph Street 
Chicago, IL 60607 

SHAW PAPER 

Chicago, IL 

SINO AMERICAN CHAMBER OF COMMERCE 

James Ying, Chairman 

16 Bowery 

New York, NY 10013 



YOUNG VIDEO, INC. 
Dr Bahk Sang," President 
25 West 32nd Street 
New York, NY 
(212) 868-9870 

•A member ol the Presidents Advisory Committee on Small 

dnd Minority Business Ov»nershlp, 



BLUE SPONSORS 

(Contributors up to $500) 

PETER CHIN 

8584 Ariel 
Houston, TX 77074 

EXECUTIVE RESOURCE ASSOCIATES, INC. 

Gordon T. Yaniada 

1701 North Fort Myer Drive, Suite 611 

Arlington, VA 22209 

GIM & WONG, P.C. 

217 Park Row 

New York, NY 10038 

GREAT CHINA INTERNATIONAL TOURS 

16 Bowery, 2nd Floor, Dept. USA 

New York, NY 10013 

(212)233-1000 

For brochures, please call or write. 

THE INTEGRATED COMPANIES, FINANCIAL 
AND PLANNING, INC. 

Bill Kawata and Associates 
Bank of California Center 
Seattle, WA 98164 
(206) 623*456 



201 



7980 Leadership Conference & 
U.S.Asia Institute 



MARTIN K. H. KONG 

Chinese American Civic Council 
300 West 23rcl Street 
Chicago, IL 60616 

KUPFERBERG, GOLDBERG, AND NEIMARK 

111 East Walker Drive 
Chicago, IL 60601 

CROWN HERITAGE CORPJPAUCEK MILLS 

112 East Ovuen Garriott Road 
Enid, OK 73701 

PARKER, ALESHIRE & COMPANY ' 

9933 Lawler Avenue 
Skokie, I L 60076 

PEKIN HOUSE/FAR EAST RESTAURANT 

Quinn S Fung, President 
2311 Devon/510 Diversey 
Chicago, IL 
(312) 465-1 130/(312) 9356550 

VICTORINA PERALTA, Chairperson 
Human Services Workshop 
Director, Adult & Aging Services 
1221 Sansom Street 
Philadelphia, PA 19107 
(215) MUfr6036 

SYSTEMS ARCHITECTS, INC. 

George S. Pan. President 
Thomas Patton Drive 
Randolph, MA 02368 
(617)961-4840 

CHIP TOM 

3661 South Iron Street 
Chicago, IL 60609 

LAUREN TOM 

1 Lincoln Plaza 
New York, NY 10023 



MARCIA L. TU 

2619 Silver Creek Drive 
Fort Collins, CO 80525 

FRANK YIN 

15740 Shady Grove Road 
Gaithersburg, MD 20760 

DR. JOHN YOUNG, Director 
Institute of Far Eastern Studies 
Seton Hall University 
South Orange, NY 07079 



83-514 - <31 - 14 



202 

Asian/Pacific Position Papers 

THE DEVELOPMENT OF ASIAN/PACIFIC POSITION PAPERS 

On May 21-22, 1980, six hundred Asian/Pacific Americans from across the nation 
assembled at a national conference in Washington, D.C. to identify issues and develop 
positions representative of the Asian/Pacific community. The First Annual Asian/Pacific 
American National Leadership Conference addressed many issues of concern and in- 
terest, including: Foreign Policy, Immigration, Political Leadership and Organization, 
Social Services, Health, Housing, International Trade, Trade Missions, Education, 
Science, Small Business, and Community Economic Development. 

From this Conference came the position papers contained in this Journal. These posi- 
tions are the end result of a process that began at the regional level of the Asian/Pacific 
American Democratic Caucus and was drawn together at the May conference. 

In the following pages of this Journal, you are presented with the results of a concerted 
effort to gain recognition of the Asian/Pacific community as an integral part of the Ameri- 
can fabric, and to develop a sensitivity to our community's needs. Without further intro- 
duction, what follows are the position papers of Asian/Pacific Americans presented as an 
agenda for the 1980's. 



203 



Asian/Pacific Position Papers 

FOREIGN POLICY 

The majority of Americans come from a European 
heritage and it has been natural for the nation to turn 
toward the Atlantic. This Eurocentric focus has permeated 
our foreign policy. Americans know little atxjut Asia and 
the Pacific because of the western cultural orientation of 
the education system. The importance of Asia and the 
Pacific can no longer be ignored. Over half of the world's 
population resides in the Asian/ Pacific region. Manufac- 
tures' exports from developing countries, notably Asian, 
have skyrocketed. Japan has become the world's third 
strongest industrial giant while many Southeast Asian 
nations compete hard for developed country markets in 
low technology manufactures. 

If ever it was acceptable. Eurocentrism in American 
foreign policy now is certainly most inappropriate. And, 
just as European Americans fit especially well as par- 
ticipants in cross-Atlantic relations, Asian/Pacific Ameri- 
cans are ideal U.S. envoys to Asia. Soaked through with 
Asian culture, language, social mores and codes of con- 
duct, yet even more knowledgeable of the American life- 
style, Asian/Pacific Americans can distill the maximal 
possible mixture of American and Asian objectives in rela- 
tions between these two great regions of the world. 

The creation, in 1978, of the National Advisory Council 
for East Asian and Pacific Affairs which facilitates com- 
munications between Asian/Pacific American communi- 
ties and the Department of State was a step in the right 
direction. But it was only one step. Further steps, designed 
to increase Asian/Pacific American participation in the 
American foreign policy process, are essential to insure 
strong amicable ties with the Asian region. 

Asian/Pacific American participation will not only ease 
contacts with Asia's national governments, but will also 
permit improved coordination with regional organizations 
like the Association of Southeast Asian Nations, ASEAN. 
Encouraging strong U.S.-Asia ties, promoting Asia's eco- 
nomic strength and stability, Asian/Pacific Americans can 
help this region of the world to continue expanding its eco- 
nomic strength. Surely this will increase Asia's exports to 
the U.S., but more importantly, it will promote an expand- 
ing, ever wealthier, Asian market, hungry for U.S. exports. 
Linked by extensive trade flows to the United States, 
Asian governments will find it in their interest to build a 
framework of security ties compatible with U.S. security. 



With this in mind, we recommend: 

• Federal Government agencies involved in the foreign 
policy process, especially the U.S. Department of 
State, must make a concerted effort to recruit Asian/ 
Pacific Americans for policy positions at all levels— 
not only in the interest of fairness and equal oppor- 
tunity but, to insure the development of the most 
effective U.S. foreign policy possible. 

• By cooperating with national governments and 
regional organizations like ASEAN, the U.S. must 
work to insure a politically and economically strong 
Asia, securely united in the struggle to insure 
economic prosperity and freedom for all Asian 
peoples. 

• The United States should uphold humanitarianism 
and human rights activities. Concern for the plight of 
millions of people in Asia should be our first priority. 

• The following recommendations are made with 
respect to specific nations/issues: 

China: The process of normalization of relations with 
the People's Republic of China should continue, and addi- 
tional attempts should be made to bring it closer into the 
web of economic ties linking together the nations of south 
and east Asia. Further, the United States should continue 
to support the modernization efforts by the Chinese 
government. While we support the continuation of 
cultural, educational, social and trade relations with 
Taiwan, we feel the Chinese should be allowed to settle 
their reunification problems internally. 

Japan: The United States should work closely with 
Japan, the third largest industrial power in the world, to 
develop assistance programs that will support stability in 
the Asian/Pacific region. This is especially important in 
the areas of foreign aid, trade investments, technical 
assistance, refugee resettlement, as well as the further 
opening of the Japanese market for American products. 

Ko/«a: The United States should work with Asian/ 
Pacific nations to seek new avenues for resolving the 
question of Korean unification. The Pacific community 
must find ways to support the democratic aspirations of 
the Korean people. 

Indochina: We are most concerned atxjut the explosive 
situation in Indochina and urge that diplomatic channels 
be found to seek a peaceful resolution as soon as possi- 



204 



Asian/Pacific Position Papers 



ble. It Is most Important that we seek regional cooperation 
to Insure that the peoples of Indochina will t>e able to wort( 
and live In peace and prosperity. 

ASEAN: The United States should support cooperative 
ventures through concrete investments. We should further 
encourage nations such as the People's Republic of 
China, Japan, Australia and New Zealand to strengthen 
their ties with ASEAN. Economic and social developments 
In the Aslan/Paclfic region will promote stability. Special 
attention should be paid to the less developed members of 
ASEAN, nations such as Indonesia. 

Phlllpplnea: The United States should work with the 
Pacific community of nations to seek ways of facilitating 
the economic well being of the Philippine people. 



205 



Asian/Pacific Position Papers 

IMMIGRATION 

Beginning with the infamous Chinese exclusion laws, 
United States immigration statutes have consistently 
repressed Asian and Pacific Immigration to this country. 
The discriminatory policies underlying the Asia-Pacific 
triangle exclusion and the Gentlemen's Agreement with 
Japan continued to manifest themselves In the National 
Origin Quota laws which further codified preclusion of 
Asian immigration. Not until 1965 were the final vestiges 
of blatant anti-Asian provisions removed from the Immi- 
gration laws. However, by that time other political and 
social restraints were In place which served as bars to a 
free flow of immigration from Asian and Pacific countries. 

Today, the effects of the past racist policies, coupled 
with certain institutionalized barriers, continue to plague 
Asian and Pacific American communities as reunification 
with family members and friends is sought. Although im- 
migration accounts for only 0.2 percent of a total U.S. 
population which is approaching zero population growth 
and is in fact decreasing, numerical limitations on certain 
preference categories effectively thwart or unreasonably 
delay reunification for most families. Unusual documen- 
tary requirements, particularly for Chinese, serve as addi- 
tional obstacles to immigration, and the English literacy 
requirement for naturalization effectively blocks elderly 
Asian immigrants from enjoying citizenship rights. Valiant 
Filipino war veterans who, in many cases, fought side by 
side with Americans In World War II continue to be denied 
naturalization benefits, and Korean citizens who were 
employed by the U.S. Army in South Vietnam have been 
foreclosed from permanent residence. 

Nonimmigrants from Asian countries also face serious 
inequities under present immigration laws. Examples of 
abuse and inconsistencies are plentiful in the area of 
change of status or extension of visas. Temporary workers 
and intra-company transferees must make their way 
through a statutory maze. 

The past and present inequities in the immigration 
system against Asians and other must not continue. In 
order to begin to address and to alleviate these inequities, 
we advocate the following specific changes. 



Increase in Total Numbers and 
Restructuring of System Preference 

• Present visa backlogs In Asian countries which have 
resulted from past discriminatory laws and political 
restraints on travel must immediately be cleared up. The 
colonial sub-quota limitation of 600 visas must be signi- 
ficantly expanded. The present immigration quota and 
preference system must be restructured in order to pro- 
vide for the reunification of nuclear family members, 
without delay. A higher priority should be given to ex- 
tended family memtiers. 

• We propose that total immigration for all categories, but 
excluding emergency refugees, be expanded to approx- 
imately 750,000 annually. This numtier shall include 
those who presently are not subject to quota. The pre- 
sent national origin limitation of 20,000 per country, 
should tie expanded to 40,000, except for Canada and 
Mexico which should receive additional numtiers. 
Three categories should t>e created: 

1. Nonemergency Refugees - The recently passed 
Refugee Act should tie maintained with a normal 
flow of 50,000 annually. 

2. Family 

a. Immediate Relative (IR) - Not subject to quota 
limitation. U.S. citizens petitioning for spouse, un- 
married children regardless of age, parents, 
grandparents, unmarried siblings who are accom- 
panying a parent entering under this preference. 
Also a permanent resident petitioning for spouse 
and unmarried children regardless of age. 

A limit of 350,000 should be initially set for the 
three preference groups listed below with the pro- 
vision that unused numbers will flow down to the 
third category. There should be no percentage 
allocations for each preference group In order to 
give priority to the highest preference applicant. 

b. First Preference - U.S. citizens petitioning for 
married children and their accompanying im- 
mediate spouse and unmarried minor children. 

c. Second Preference - U.S. citizens petitioning for 
brothers and sisters with their accompanying 
spouses and unmarried minor children. Also per- 
manent residents petitioning for parents. 

d. Third Preference - Permanent residents petition- 
ing for unmarried brothers and sisters. 



206 



3. Third Category or Independents should be divided 
Into two sections Numbers allocated tor this cate- 
gory shall be 150,000 plus any unused portion of the 
family category. 

a. The first section shall permit 250 persons from 
each country In the world to enter the U.S. on the 
basis of motivation, without regard to preference, 
wealth, or skills. The purpose of this section Is to 
maintain the U.S. tradition of tjeing a land of 
opportunity for those who are less fortunate. Pro- 
vision should be made lor supportive services 
similar to those available to refugees We esti- 
mate this group will number around 40,000 
annually. 

b. The balance of the Third Category should be 
based on a point system with weighted points 
given for the following: education, skills and ex- 
perience (especially if there is a shortage of such 
skills In the U.S.), entrepreneurial experience, 
managerial experience. We estimate this group 
will numtier around 110,000 annually. 

Other Recommendations 

• Filipino war veterans who served with the U.S. armed 
forces must be provided with the right to apply for full 
citizenship benefits. Alternative means of satisfying the 
English literacy requirements for naturalization should 
be recognized. Consistent standards tor nonimmigrant 
categories and visas must t>e established with reason- 
ableness. Important policy issues relating to refugee 
amnesty, must be given close consideration. Greater 
sensitivity towards cultural and social values of im- 
migrant groups should be an established goal for all Im- 
migration and Naturalization Service employees. 

• Certain provisions in the present laws which are 
extremely inequitable and unfair must be corrected. The 
"reentry doctrine" which permits the exclusion of lawful 
permanent residents who have proceeded abroad even 
temporarily should be eliminated. The fact that deci- 
sions of consular officials cannot be reviewed is repug- 
nant to principles of fairness and breeds abuse. In the 
deportation area, the right to counsel and the applica- 
tion of the evidentiary exclusionary rule where the 
Fourth Amendment has been violated must be viewed 



Asian/Pacific Position Papers 

as fundamental A statute of limitations should be 
legislated and additional humanitarian remedies must 
be expanded. 

Administratively, the INS needs to be made more effi- 
cient on the service end. The naturalization process 
needs streamlining, and the replacement procedure for 
lost or stolen alien cards should be revamped. The labor 
certification procedure is unwon<able and lacks ra- 
tionality, while the absence of a waiver provision for 
Section 245(c) which prohibits adjustment of status if a 
person has worked without authorization operates 
harshly in many cases. 

A fair and humane body of immigration laws which is 
applied evenly, fairly, and compassionately is a goal 
within our reach. Every effort must be made to reach 
that goal lest we be doomed to repeat the sad and pitiful 
history of the painfully discriminatory immigration laws 
of the past. 



207 



Asian/Pacific Position Papers 

INTERNATIONAL TRADE 

The United States economy remains the largest in the 
world. But, America's economic dominance is waning, its 
international position shifting. In 1974, America's Asian 
trade surpassed its trade with Europe. Asian businessmen 
give no sign of letting their leading position slip away. 

For the U.S., the new relationship is not without its prob- 
lems. The American share of the Asian market is dwindl- 
ing while Asia's exports to the U.S. grow faster than Asia's 
imports from the U.S. 

How can American businessmen sell more to the 
Asians? The answer is quite simple. American business 
must not only supply superior goods at competitive prices, 
but they must learn more about Asians and tfieir land to in- 
sure production appropriate for Asian circumstances; 
marketing appealing to Asian sensibilities; sales compati- 
ble with Asian national regulations. Essentially, American 
businessmen must learn Asian languages, cultures, and 
national regulations. 

Intimately knowledgeable about both American and 
Asian systems, Asian/Pacific Americans with bicultural 
and bilingual skills can be effective and useful in Ameri- 
can trade with Asia. 

Europe has no sizable Asian ethnic bloc. The competi- 
tive advantage is America's to exploit. While the tienefits 
of Asian/Pacific American participation in America's Asia 
trade appear obvious, there has been no organized effort 
to recruit this immensely useful group by either govern- 
ment or business. Most Asian/Pacific American business- 
men are involved in small businesses. Certainly this is a 
deterrent to their participation in international trade, but 
just as cenainly, this does not preclude their participation 
in international trade. If the government is unwilling to 
help coordinate small businesses to permit operation on a 
scale enabling successful competition with the large firms 
dominating America's international trade, then it must 
stand ready to actively promote Asian/Pacific American 
participation in big business and insure adequate repre- 
sentation in government-sponsored trade delegations. 

We refuse to accept explanations that excuse the fail- 
ure of government agencies to bring Asian/Pacific Ameri- 
cans into high level positions by suggesting that the initia- 
tive for participation must come from Asian/Pacific 
Americans. Ivtany more Asian/Pacific Americans are will- 
ing to come into government, but they are not going to ac- 



cept positions far below the level for which they are 
qualified. We are not asking that Asian/Pacific Americans 
be given positions for the asking, but rather that they be 
given full consideration for positions for which they are 
qualified. 

Asian/Pacific American participation can help promote 
the sales of American products in Asian countries, and 
permit the building of stronger economic ties, based upon 
a clearer understanding of each other's positions, 
between these two great regions of the world. 

The following recommendations will help strengthen 
economic ties between Asia and America: 

• The Federal Government should establish an Asian 
and Pacific American International Trade Advisory 
Group to coordinate policy and interact on a perma- 
nent basis with the Department of Commerce, the 
Overseas Private Investment Corporation, the United 
States Trade Representatives Office, the Department 
of State, the Agency for International Development, 
other pertinent agencies, and Congress. This will per- 
mit full use of the special insights Asian/Pacific 
Americans can bring to America's international trade 
posture. 

• To insure appropriate and successful foreign 
economic policy, the U.S. Government should recruit 
and include Asian/Pacific Americans in high level 
policymaking positions. 

• Because at the present time most Asian/Pacific 
American businessmen are engaged in small busi- 
nesses, careful consideration must be given to the 
possibility of coordinating small businesses on a 
scale permitting successful competition in the inter- 
national arena. 

• Regulations making it especially difficult for small 
businesses to engage in International operations 
must be reexamined. The exclusion on foreign-earned 
income, once intended to encourage American 
exports, now makes it so costly tor firms to post 
employees overseas that most companies cannot 
afford to retain Americans In foreign posts. 



208 



Asian/Pacific Position Papers 



U.S. TRADE MISSION 

The United States economy Is still the largest economy 
In the world but it no longer is the dominant force In the 
world that It was even ten years ago. In 1969, the U.S. 
share of world exports was 25 percent but, in 1979, it 
declined to 14 percent. The challenge for the 1980s Is to 
recapture a larger share of the market. 

U.S. exports to Asian/Pacific countries now are equal to 
those to Europe. As economic conditions improve, the 
growth potential of U.S. export trade to the Asian-Pacific 
countries could well develop that part of the world into the 
largest single export market for the United States. This will 
require all the intelligence, diligence, and skill of Ameri- 
cans, since the 1980s will be a decade of intense trade 
competition. 

To meet this challenge, our country should call upon the 
more than four million Asian/Pacific Americans in our 
country to assist in this task. 

The United States has used trade missions to promote 
sales of our products and services. The travel industry In 
Hawaii, over the past ten years, has sent numerous trade 
missions to Japan and, in 1979, the number of Japanese 
visitors to Hawaii increased by 23 percent to almost 
600,000. These Japanese visitors contributed more than 
400 million dollars to the Hawaii economy last year. 

Asian/Pacific Americans can play a far greater role In 
the United Stales in fostering, promoting and developing 
export trade to the Asian/Pacific countries. Asian/Pacific 
Americans, with bilingual and bicullural capabilities and 
ethnic sensitivity, have the obvious qualities to bridge the 
language and cultural gaps which impede Ijetter inter- 
cultural understanding and that oftentimes obstruct our 
export efforts. 

A major deten-ent to more active participation by Asian/ 
Pacific Americans in U.S.sponsored trade missions is the 
fact that a great majority of the Asian/Pacific Americans 
are engaged in small business activities. By the nature of 
representation or membership in trade missions, the small 
businessman is precluded from active participation. 

A major ingredient of an expanding export trade to 
Asian/Pacific countries is a good relationship on a people- 
to-people basis. Generally, countries are anxious to 
receive trade missions. They provide a good introduction 
for goods and services for both countries and also provide 
for the development of personal contacts. Participation by 



Asian/Pacific Americans in trade missions and interna- 
tional trade will make good use of one of our country's 
most valuable assets. 

To enhance the development of Increased export trade 
to the Asian/Pacific countries, it is recommended that we; 

• Develop an outreach program to bring the Asian/ 
Pacific Americans into active participation in trade 
missions. 

• Encourage the study of Asian language. 

• Encourage the development of inter<ultural under- 
standing. 



209 



Asian/Pacific Position Papers 



SMALL BUSINESS 

For businessmen faced with discrimination, inadequate 
training In the necessary language and technical skills, 
and insufficient resources, a smad business is often the 
only business they can ever hope to be a part of. Largely 
because of these reasons, most Asian/Pacific American 
businessmen are small-scale enterpreneurs. 

The popular misconception Is that Asian/Pacific Ameri- 
can businessmen, whether on a large or small scale, are 
inordinately successful. Would that this were true. A 1980 
Small Business Administration report indicates that 
Asian/Pacific American small businessmen have very low 
gross incomes. Unable to get the necessary assistance 
from the private sector, Asian/Pacific American business- 
men need government help to set them on a. successful 
path. We are not asking for handouts, but for training pro- 
grams, financial assistance, and equal opportunity to per- 
mit hardworking Asian/Pacific American businessmen— 
of whom there are many— to make their ideas a reality; to 
allow them to reach beyond the ordinary if their desire, 
their ideas, and their hard work are worthy of success. 

The Federal Government has developed several pro- 
grams especially aimed at assisting minority-run small 
businesses. Regrettably, the implementation of these pro- 
grams often rests on a plane far taelow the one on which 
they were conceived and drawn up. Only a skimpy mea- 
sure of assistance from these programs has filtered 
through to Asian/Pacific businessmen. 

Assistance under the 8A program is provided to some 
small businesses, organized for profit and meeting the 
requirements set out in Part 121 of the SBA Rules and 
Regulations. The businesses must be owned (at least 51 
percent), controlled, and operated by socially and eco- 
nomically disadvantaged U.S. citizens. Although certain 
ethnic groups, including Asian/Pacific Americans are con- 
sidered part of the disadvantaged bloc, just belonging to 
one of the specified groups does not insure 8A eligibility. 
Each case is examined for Its own merits. Social and 
economic disadvantage that has impaired the ability to 
compete in the free enterprise system must be proved. 

Serving the same group that 8A assistance reaches are 
the ti^inority Enterprise Small Business Investment Com- 
panies (MESBIC). Privately owned and managed, clustered 
within states, and licensed for national operations, 
MESBICs are formed to lend funds, guarantee third party 



loans, and offer general management and technical 
assistance to small businesses. 

For Asian/Pacific Americans, and for all minorities gen- 
erally, neither the MESBIC nor the Minority Business 
Development Agency (MBDA) programs are as efficient as 
they might tse. The rules governing eligibility seem reason- 
able, but major difficulties appear in disbursing the full 
allotment of funds assigned to each program. Financed by 
public and private funds, the 67 MESBICs in June 1974 had 
total funding of $52 million, of which $23 million came 
from the SBA. Amazingly, only $17 million or 33 percent of 
the available funds had t)een Invested In disadvantaged 
small businesses. Several minorlty-run small businesses 
would be only too glad to get more, or to get any, MESBIC 
assistance. Asian/Pacific American-run small businesses 
received only 4 percent of the MBDA-approved financial 
packages and 5 percent of its approved procurements In 
1978. If the funds are just going to sit there, why not in- 
crease assistance to deprived Asian/Pacific American 
small businesses? 

Several Improvements can be incorporated into govern- 
ment policy aimed at helping small businessmen. We offer 
some suggestions below: 

• A greater attempt must be made by both the Asian/ 
Pacific American business community and the 
Federal Government to insure that Asian/Pacific 
Americans receive their full due from Federal pro- 
grams aimed at assisting minority-run small busi- 
nesses, and that Federal programs, at least until 
minority-run small businesses no longer need govern- 
ment assistance, disburse the full amount of funds 
available for use. 

• Government agencies and programs should t>e cogni- 
zant of the fact that a large proportion of the Asian/ 
Pacific American community consists of newly 
arrived refugees, many of whom hail from entrepre- 
neurial backgrounds, but who need special inter- 
cultural and linguistic training to permit successful 
operation in an American environment to which they 
are not accustomed. 



210 



Asian/Pacific Position Papers 



Often government programs do not reflect Asian/ 
Pacific American concerns and needs because the 
government fias failed to bring Aslan/Paclfic Ameri- 
cans Into tiigh policy-making positions. Efforts must 
be made to rectify this problem, and an Aslan/Paclfic 
American Advisory Council should be set up to work 
In conjunction with relevant government agencies to 
Insure a fair hearing for Aslan/Paclfic concerns. The 
Council will give qualified Asian/ Pacific Americans 
access to the proper channels, permitting them to 
link the Aslan/Paclfic American community with 
mainstream American economic and political life, 
and providing benefits for the whole American nation. 



211 



Asian/Pacific Position Papers 

COMMUNITY ECONOMIC DEVELOPMENT 

Waves of new Aslan/Paclfic immigrants to the U.S. tend 
to set up residence In ethnlcaiiy-segregated communities. 
Comfortable witfi people coming from similar cultural/ 
linguistic backgrounds, Asian/Pacific Americans often 
tiesltate to leave tfie security of tfieir little islands of "Asia 
In America" to work and live in otfier areas whicfi to ttiem 
appear strangely alien. Too Insecure to search for employ- 
ment outside of their community, yet often not finding any 
opportunity within their community, new Asian/Pacific Im- 
migrants many times find themselves stuck at the bottom 
of the socio-economic scale. 

Development for this group— willing to work yet uncom- 
fortable in the American environment— must begin within 
the Asian/Pacific American communities in which they 
reside. Those Asian/Pacific Americans with the courage 
and the perseverant dedication to initiate programs aimed 
at community development should be encouraged by mak- 
ing available to them special programs under whose 
auspices they can organize and plug Into available 
resources. Ideally, a structured organization with the 
capacity to train personnel, organize, and procure funds 
should be created. 

The Economic Development Administration with the 
Department of Commerce, and the Community Services 
Administration have developed programs aimed at com- 
munity development. However, Asian/Pacific Americans 
are a neglected group in the receipt of government 
development assistance monies. Only one Asian com- 
munity development corporation funded by the CSA exists 
In the United States— the Chinese Economic Development 
Council in Boston. With this in mind, the following recom- 
mendations are made: 

• A national council on Community Economic Develop- 
ment for the Asian/Pacific American community 
should be established to educate the community on 
the benefits of, and process to procure, community 
development funding; to serve as advocates for the 
community in obtaining community economic devel- 
opment funds; and to assist in the implementation of 
community development programs once funding is 
obtained. 



Asian/Pacific Americans should be Included as a 
disadvantaged minority in the area of community 
economic development with special consideration 
given applications of this group funding. In addition, 
community development agencies under the federal 
government must establish an outreach Informa- 
tional program to educate minorities on monies that 
are available. 

To better serve the Asian/Pacific community and 
other ethnic communities, Asian/Pacific Americans 
should t>e placed in policy-making positions in com- 
munity economic development agencies, particularly 
in the Community Services Administration, the 
Department of Commerce, USDA, and Housing and 
Urban Development. 



212 



POLITICAL ORGANIZATION 
AND LEADERSHIP 

The United States Is a mosaic of many cultures and 
ethnic groups. Four million Asian/Pacific Americans, an 
Integral part of this mosaic, live in this country, and con- 
tribute socially, culturally, economically, and In many 
other ways to the fabric of American society. Yet, over the 
years, the concerns of Asian/Pacific Americans have 
largely been ignored by those In power due to the lack of a 
strong, unified voice from the Asian/Pacific community. 

Practically speaking, the geographic dispersion of the 
Asian/Pacific community makes It impossible for an 
Asian/Pacific American to be elected to Congress outside 
of Guam, Hawaii and California except with the support of 
non-Asian voters. Likewise, appointments in the Executive 
and Judicial Branches of the Federal Government are 
dependent upon political visibility. For Asian/Pacific 
Americans to have their Interests and concerns heard, 
they must develop political visibility and viability. This can 
only be done through political organization and leader- 
ship. 

Progress is being made. In the past four years, more 
Asian/Pacific Americans have been appointed to Presi- 
dential Commissions and Advisory Councils, Administra- 
tion and agency committees and posts, and Federal judge- 
ships than in all previous Administrations. This Is a step In 
the right direction; however, there is still a long way to go. 
To adequately address the needs and concerns of Asian/ 
Pacific Americans, the following actions are urged: 

• Political power is never given away. It can only come 
with commitment and effort. The Aslan/Paclfic Ameri- 
can community must recognize this, organize, and 
tjecome involved in the political process. 

• As part of its organizational efforts, the Asian/Pacific 
community must strive to overcome cultural re- 
straints, and educate the people on the politics of the 
American governmental system. Understanding is the 
basis of commitment and effort. 

• If Asian/Pacific peoples hope to obtain political 
power through elective office, they must rely on non- 
Asian voters. Thus, Asian/Pacific Americans must 
work to eliminate and overcome negative media and 



Asian/Pacific Position Papers 

other stereotypes— building a positive image of 
Asian/Pacific Americans as edective leaders, sen- 
sitive to the needs and concerns of everyone. Like- 
wise, the Asian/Pacific community must work wif/i 
other groups for the tjetterment of all. 
While significant steps have been made In appointing 
Asian/Pacific Americans to positions in the Executive 
Branch, qualified members of our community should 
be recruited for all levels of appointment— including 
Cabinet and sut>-Cablnet positions, as Assistants to 
the President, and lor all levels of policymaking posi- 
tions in the departments and agencies on both the 
national and regional levels. 
Executive departments and federal agencies should 
appoint Aslan/Paclfic Americans to advisory groups 
to review existing policies and practices that may be 
barriers to the needs of Aslan/Pacillc Americans, and 
to look after Aslan/Paclfic concerns In the making of 
new policies. 

Aslan/Paclfic Americans should be appointed to 
Judicial positions. To achieve this, Asian/Pacific 
Americans must utilize existing avenues for input 
Into judicial appointments. 



213 



Asian/Pacific Position Papers 

SOCIAL SERVICES 

Our social services should meet the social, physical, 
and emotional needs of Asian/Pacific Americans as well 
as others. Many first generation Asian/Pacific Americans 
with language and cultural barriers are not able to utilize 
present resources because they cannot comntunicate 
with the dispensers of services, and they fear insensitive 
treatment at the hands of outsiders. Service providers 
should be aware of and responsive to these needs. Social 
service Institutions located In urban areas with such 
Aslan/Paclfic American populations must train or employ 
bilingual personnel to insure effective service provision for 
Asian/Pacific Americans. 

The availability and accessibility of social services for 
Asian/Pacific Americans should be enhanced as we can 
no longer take care of our own. As the Asian/Pacific 
populations grow, ethnic bilingual community organiza- 
tions that have been trying to fill the void are finding their 
resources strained. For a system available, accessible, 
and acceptable to Asian/Pacific American communities, 
the following steps must t>e taken: 

• Data collection and interpretation should tie improv- 
ed so that the needs of our people are identified and 
ways of serving them can be developed. 

• Funding should be made available to Asian/Pacific 
community organizations to conduct need studies. 
These organizations have the language expertise, 
cultural knowledge, and community trust necessary 
for proper data collection and interpretation. 

• Asian/Pacific American input into the planning, devel- 
opment and implementation of social services at all 
levels must be actively sought. 

• Social service providers must be sensitive to the 
cultural and language differences of Asian/Pacific 
American populations. Efforts must be made to 
recruit, train, and employ multi-lingual and multi- 
cultural personnel at all levels. 

• Funding should be allocated for the planning, devel- 
opment and implementation of policies to meet the 
needs of the Asian/Pacific community, especially the 
needs of refugees. The Federal Government further 
should seek refugee input for such programs as orien- 
tation, health, housing, language and vocational 
training. 



214 



HEALTH 

Language and cultural barriers deny Aslan/Paclfic 
Annerlcans equal access to the nation's health care pro- 
grams. Ethnic bilingual community organizations have 
sprung up In Aslan/Paclllc American communities In an 
attempt to Improve our health services. Limited resources, 
however, have hindered their effectiveness. More effort 
must be made by governmental and non-governmental 
health care planners and providers to meet the health 
needs of Asian/Pacific Americans. 

To insure equality of health care to tfie Aslan/Paclfic 
community, the following measures should be imple- 
mented: 

• Asian and Pacific Americans should be Included In all 
levels of health and mental health care planning that 
will have an Impact on their communities. This in- 
cludes staff positions at ail levels of the federal and 
regional health and human services agencies. Poli- 
cies should be enacted and implemented with the 
needs of Asian/Pacific Americans in mind. 

• Funding and technical assistance should be made 
available to Aslan/Paclfic American community 
organizations to collect data for proper Input into 
health care planning. 

• Since almost half of the Aslan/Paclfic American 
population Is composed of immigrants and refugees, 
many with language and cultural difficulties, our 
communities need integrated comprehensive multi- 
service health care centers staffed by bilingual and 
biculturai workers. There should be an increased 
commitment and financial support for Asian/Pacific 
American community-based services. 

HOUSING 

(Housing is a central concern of Asian/Pacific 
Americans. Acute problems exist— especially among new 
refugees and In deteriorating inner city communities 
where housing is lacking, or at most. Inadequate. Newiy- 
arrlved refugees suffer double hardship In their relocation 
efforts. Not only is housing not available, but information 
and acculturation services are often lacking, making relo- 
cation efforts In an alien country even more frightening 
and difficult. Among the elderly, many continue to live in 



Asian/Pacific Position Papers 

Inadequate housing for the sense of security they get by 
living among their own. 

To address the needs of Aslan/Paclfic populations, the 
following must t>e done: 

• Communication should C>e maintained with Asian/ 
Pacific American communities to ascertain the needs 
of the Asian/Pacific people Continual outreach by 
the Department of Housing and Urt>an Development 
and other housing-related agencies is essential for 
proper Aslan/Paclfic American Input Into housing pro- 
grams, and to ensure the inclusion of Aslan/Paclfic 
Americans in housing programs. 

• Asian/Pacific Americans should be recruited for 
employment In policy-making positions on both the 
regional and national levels. They should also be 
recruited for positions In research, development of 
contracts and all phases of subsidized housing proj- 
ects. Further, Asian/Pacific Americans should be pro- 
perly represented In occupancy, work force, and con- 
tracts In all subsidized projects. 

• HUD should promote and assist Asian/Pacific 
American nonprofit community organizations In 
financing the technical capacity to take a more active 
role In housing development. 

• Additional funding of information and acculturation 
service centers is needed to give Asian/Pacific Ameri- 
cans the confidence and the ability to function suc- 
cessfully in mainstream American life. 

• Housing needs of refugees are particularly acute at 
this time. The Department of Housing and Urban 
Development should solicit Indochlnese community 
input regarding their housing needs. We urge the 
President to develop a special housing program for 
Southeast Asian refugees and small Asian/Pacific 
American communities with the full participation of 
Southeast refugee organizations and smaller Asian/ 
Pacific communities in the development and imple- 
mentation of this special housing program. 



215 



Asian/Pacific Position Papers 

EDUCATION 

Federal programs in almost every area of education, 
ranging from early childhood education to adult educa- 
tion, are still culturally insensitive, often in subtle ways, to 
the special problems and needs of Asian/Pacific Ameri- 
cans, thereby denying them equal educational opportun- 
ity. While many of these programs claim to promote multi- 
culturalism, they often include only the most superficial 
aspects of cultural diversity and many ultimately do more 
harm than good. 

Due to the enormous influx during the past decade of 
AsiarVPacific immigrants, who may now constitute as 
much as 50 percent of the total Asian/Pacific American 
population, there is a tremendous need for additional 
federal funding of bilingual/bicultural education programs 
for Asian/Pacific Americans. Such programs are currently 
grossly underfinanced in comparison to those for other 
non-English speaking groups. 

Many Asian/Pacific American adults, especially recent 
immigrants, unemployed young adults, and wives of U.S. 
servicemen, are urgently in need of gaining competency in 
English and learning a useful vocation. Without help, 
many of them are wasting their potential, trapped in low- 
paying, menial Jobs: while others, especially young adults, 
are unemployed and subject to temptations to join street 
gangs to pursue a life of crime. 

Due to the Anglo-centric environment of most colleges 
and universities, Asian/Pacifies face many problems in 
higher education. Asian/Pacific students are not having 
their social, psychological and academic needs met due 
to the lack of Asian/Pacific studies programs and unavail- 
ability of cross-cultural counseling. Asian/Pacific Ameri- 
can students from low-income families are not receiving 
their proportionate share of financial aid; and even those 
from middle-income families are having great difficulty 
financing their education because of Federal guidelines 
on financial aid that do not consider the special circum- 
stances faced by many of these families. Moreover, Asian/ 
Pacific American academicians in higher education, in- 
cluding those who are American-txjm, are finding it par- 
ticularly difficult to gain access to faculty positions in 
fields such as humanities and social sciences; and those 
who have gained access face subtle forms of discrimina- 
tion in such areas as promotion and salary. 

A number of the problems described above are exacer- 



bated for the 400,000 Indochinese refugees who have 
entered the country since 1975. Atjout 40 percent of these 
refugees are school-age children who are often two grade 
levels behind due to the interruption of their education by 
the war. Moreover, due to the hardships and trauma they 
have undergone, many of the refugees suffer from health 
problems and severe psychological stress. Unfortunately, 
despite the efforts of the Federal government to meet their 
neeids, many Federal programs to assist the refugees are 
not very effective owing to the lack of coordination among 
government officials and the lack of consideration given 
to the cultural and linguistic differences among the 
various Indochinese groups. 

Finally, Asian/Pacific Americans are greatly under- 
represented In all sectors of the Federal Government, par- 
ticularly at the GS-15 and higher grades— decision-making 
levels— as well as on the various policy-making advisory 
txxlies. 

The following positions on policy and programs in dif- 
ferent areas of education grow out of our concerns: 

Overall 

• The Department of Education must insure Asian/ 
Pacific American input into policymaking through both 
the employment of our people in decision-making level 
positions (GS-15 and up) as well as on the various ad- 
visory bodies and review committees. 

• Programs should be reviewed to determine whether 
they can be more sensitive to the special needs of 
Asian/Pacific Americans and whether they can promote 
multiculturalism in more substantive and meaningful 
ways. 

Lower Education 

• More coherent and sound multicultural education pro- 
grams must be developed, funded, and Implemented. 
Asian/Pacific American cultural heritages and history 
should be included in the curriculum. Funding should be 
Increased for the in-serelce training of teachers, the 
development of curriculum materials, and research in 
multicultural education, particularly as it pertains to the 
Asian/Racific American. 

• Funding for bilingual education programs for the Asian/ 
Pacific American should be substantially increased. 
More bilingual teachers need to be trained, and more 
and better designed curriculum materials need to t>e 



216 



Asian/Pacific Position Papers 



developed. In addition to studying English as the lun- 
damental language, ethnic language classes should t>e 
available. 
Higher Education 

• More programs in Aslan/Pacltic studies, bilingual tutor- 
ing, cross-culturai counseling, and ethnic studies 
should tje funded to help meet the social, psychoiogl- 
cai, and academic needs of Asian/Pacific American col- 
lege and college-txjund students. 

• Guidelines for financial aid programs should be re- 
viewed and appropriately modified to increase financial 
aid to Asian/Pacific American students from low- 
income families, and to enable more Asian/ Pacific 
American students from middle-income families to 
qualify for assistance. 

Adult Education 

Special English and job-training programs are urgently 
needed and should be made available to communities 
where there are large numbers of Asian/Pacific 
Americans. 
Refugees 

The Carter Administration is to be commended for Its 
humanitarian efforts to assist Indochinese refugees. Sup- 
port for various programs must be continued. 

increased support is needed for adult English and voca- 
tional training programs. There must be better coordina- 
tion of programs by Government officials. Greater con- 
sideration should also be given to the cultural and 
linguistic differences among the various Indochinese 
groups. 

Affirmative Action 

Agencies responsible for enforcing affirmative action 
should recognize the plight of Asian/Pacific Americans on 
the basis of the Relative Latx>r t^^arket (based on the pool 
of available personnel, not on straight racial quotas), 
designating Asian/Pacific Americans as disadvantaged 
minorities, and take vigorous action to eliminate 
inequities. 



217 



Asian/Pacific Position Papers 

SCIENCE 

Science and technology will be providing many of the 
solutions to problems facing the nation and the world in 
the 1980's. Asian/Pacific Americans have already made 
disproportionately great contributions to the explosive ad- 
vances which have taken place in ttie last three decades. 
The commitment to scholarship and knowledge within our 
cultural traditions will continue to ensure Asian/Pacific 
American contributions to science and technology. Our 
scientists and engineers will play indispensable roles in 
maintaining our nation's leadership position in the world. 
Asian/Pacific Americans, because of their bicultur- 
alism. can bridge differences between our nation and the 
developing countries in the Asian Pacific Basin. Our scien- 
tists and engineers are in the unique position of tieing able 
to provide technical assistance to these Third World 
nations. Their efforts will promote stability and economic 
growth in these crucial areas of the world as well as 
strengthen our nation's ties with these countries. 

Yet the percentage of Asian/Pacific Americans in man- 
agerial, administrative, and decision-making positions is 
small compared to the numbers engaged in science and 
technology. They are often under-employed and under- 
compensated. Within the federal government Asian/ 
Pacific Americans need appropriate representation in 
high-level science administration, advisory bodies, and 
review committees. For example, considering the large 
number of successful Asian/Pacific American scientists, 
we would want the National Science Board to include 
some Asian/Pacific American members. 

In academia, studies show the Asian/Pacific American 
science faculty has an above-average percentage holding 
doctorates and a higher number of publications per per- 
son. Yet they are substantially underpaid, hold lower 
academic ranks, and rarely hold positions in admini- 
stration. 

Available statistics show similar status for the Asian/ 
Pacific American scientist in industry and his counterpart 
in government. As our people are well-represented in tech- 
nical fields because of selective immigration, a propor- 
tionate numlser should work in supervisory roles. But the 
Asian/Pacific American tends to be an isolated technolo- 
gist in a specialized area. It takes him longer to become a 
supervisor. More need to be placed in decision-making 



positions such as marketing and planning. 

Affirmative Action guidelines on Asian/Pacific Ameri- 
cans are confusing. While our people appear to be over- 
represented In science and technology, the representation 
is not based on the Relative Labor Market or the pool of 
available personnel. Brain drain, or the immigration of 
carefully selected, highly trained scientists, engineers, 
and other professionals, cannot bring equal opportunity to 
Asian/Pacific American youth. 

We therefore call for the following actions; 

• Asian/Pacific American scientists and engineers 
must be involved in policymaking. The National 
Science Foundation, the Department of Energy, the 
Education Department, and the various research 
agencies must make a vigorous and serious effort to 
recruit Asian/Pacific Americans for high-level 
decision-making positions and advisory bodies. 

• Civil rights agencies must monitor employers of 
Asian/Pacific American scientists and engineers to 
ensure equal employment opportunities and compen- 
sation. 

• Affirmative Action guidelines must tae reviewed. A 
well-researched and clearly stated position from the 
Federal government should supplement good inten- 
tions and clarify verbal commitments. 

• Corporate opportunities, such as management train- 
ing programs, should tie created to enable qualified 
Asian/Pacific Americans to make a transition from 
their field of specialization. 

• Our scientists and engineers should adopt new atti- 
tudes toward involvement in public affairs. They need 
to be more involved in science leadership, health care 
for the disadvantaged, environmental issues, and the 
like. The more established and affluent groups and in- 
dividuals should help promote the welfare of new im- 
migrants and disadvantaged fellow Asian/Pacific 
Americans. 



218 



Asian/Pacific Position Papers 



ASIAN/PACIFIC AMERICANS: 
POSITION PAPERS, 1980 

The Asian/Pacific Position Papers which appear on the 
preceding pages represent the consensus of those attend- 
ing the Asian/Pacific American National Leadership Con- 
ference, May 21-22, 1980 In Washington, D.C The U.S.-Asia 
Institute would lli<e to acl^nowledge the assistance of con- 
ferees as well as all of those who read and assisted with 
the drafting of this paper. 

Drafted by Priscllla Ching Chung. Ph.D. 
tjniverslty of Hawaii at Manoa 

Howard Chang 

Han/ard College, Cambridge, Mass. 

Ayoy Vachher, B.S.F.S. 
Georgetown University, 
Washington, D.C. 

With the generous assistance of: 

Wlnbarg Chal. Ph.D., South Dakota 

Williamson B. C. Chang, J.D., University of Hawaii 

Kenneth Char, Honolulu 

Benjamin Gim, J.D., New Yori< 

Bill Ong HIng, J.D., San Francisco 

Richard Hsieh, Dr. Ph., M.D., Johns Hopkins 

University 
Thomas HsIeh, AIA Architect, San Francisco 
James Hsiung, Ph.D., New York University 
Gall Kee, Stanford University 
Norman Lau Kee, J.D., New York 
Chong-slk Lee, Ph.D., University of Pennsylvania 
William J. Leong, Boston 
Harry W. Low, Superior Court of California, 

San Francisco 
William M. ManjtanI, Pennsylvania Court of 

Common Pleas, Philadelphia 
Jun Mori, J.D.. Los Angeles 
Dennis Mukai, J.D., Los Angeles 
Franklin Ng, Ph.D., California State University, 

Fresno 
Vlctorina Peralta, M.S.W., Philadelphia 
Ra] Prasad, Ph.D., San Francisco 
Wllma Sur, J.D., Los Angeles 
Thomas Surti, J.D., Oakland 



Robert Suzuki, Ph.D., University of Massachusetts, 

Amherst 
Chan Tom, Chicago 

Mai Hee Wallaca, Ph.D., University of Maryland 
Herbert Z. Wortg, San Francisco 
Chia Wei Woo, Ph.D., University of California, 

San Diego 
John Young, Ph.D., Seton Hall University 



The following pages detail the 1960 National Leadership 
Conference, Its conferees, and participants. 



219 



Foreign Policy & 
Immigration 

KEYNOTER: Hon. Richard C. Hotbrooke 

Assistant Secretary of State for 
East Asian and Pacific Affairs 

Focusing on Foreign Policy Toward Aslan/Paclfic Nations and Immigration and Refugee Policy In the 1980's, participants 
In the Foreign Policy and Immigration Workshop interacted with representatives from the U.S. State Department and 
experts In the field of Immigration policy and law. 

WORKSHOP CHAIR: 

Dr. John Young. Dr. Young Is a Professor and the Director of the Institute of Far Eastern Studies at Seton Hall University. 
He Is one of the principle creators and Chairman of the National Advisory Council for East Asian and Pacific Affairs in the 
Department of State. 

PANEL CHAIRS: 

FOREIGN POLICY— Dr. John Young. 
IMMIGRATION— Benjamin Qlm, Esq. 

Mr. Gim Is a New York attorney with the firm of Gim & Wong. He served as National President of the Association of Immi- 
gration Lawyers during 1977-78. He Is a member of the Board of Directors of the International Center In New York City. He Is 
a lecturer In Immigration Law at Columbia University. He serves on the Board of Lawyers' Committee for Human Rights, 
and the American Council for Nationalities Services. 

PANELISTS: 

Foreign Policy Presenters: 

Dr. Nguyen Van Chau, Dr. King Chen, Paesun Im, Edward Leung, Dr. Toshiyuki Nishikawa, Vu K. Thu. 

Foreign Policy Respondents: 

Kenneth Bleakiey and U.S. Department of State Desk Officers— China, India, Indochina, Japan, Korea, and Philippines. 

Immigration Presenters: 

Wlliam Hing, Esq., f^. A. Koya, Esq., Wllma Sur, Esq., Pedro Lamdagan, Esq., and Dennis Mukal, Esq. 

Immigration Respondents: 

f^ary Brandt, Rose Ochi, Esq., and Thomas Surh, Esq. 



i«.£-w.-.^-&fgt*v^^«. E^i^i«?f».:i,vatl.T.'?HMB^.'*^ 



220 



BLEAKLEY, Kenneth 

BRANDT. Mary Rota 
CHEN, King C. 

HING, William Ong 



IM, Paesun 
KOYA, M. A. 

LAMDAGAN, Pedro 

LEUNG, Edwin 
MUKAI, Dennis 

NISHIKAWA, ToshlyukI 



Foreign Policy & 
Immigration 

Mr. Bieakley is Special Assistant to Richard Holbrooke, Assistant Secretary of State (or 
East Asian and Pacific Affairs. 

IVIs. Brandt is a refugee officer with the Office of Refugees in the Department of State. 

Dr. Chen, Is a Professor and Graduate Director In the Department of Political Science at 
Rutgers University. He has published numerous books and articles on Chinese foreign 
policy. He is also the Vice-President of the New Jersey Association for Chinese Culture 
and Heritage. 

Mr. Hing is a San Francisco attorney and Assistant Professor of Law at Golden Gate 
University. He is a memtier of the Staff Advisory Group to the Select Commission on Immi- 
gration and Refugee Policy. HIng serves on the Board of Directors of the Asian American 
Bar Association, the Chinatown Resource Development Center, and the San Francisco 
Neighborhood Legal Assistance Foundation. He is the fomier Director of the Immigration 
Law Unit of the S.F. Neighborhood Legal Assistance Foundation. 

Mr. Im is a student at Yale University, summa cum laude candidate with the Department of 
History. He is the leader of the school's Political Union. 

Mr. Koya Is an attorney in New York State who deals in the litigated practice of Immigra- 
tion law. He is a member of the District Court of the Southern and Eastern Districts of New 
York, and a memtjer of the New York Bar since 1974. He Is also a memtwr of the Supreme 
Court of the United States. 

Mr. Lamdagan is a Los Angeies attorney in private practice with an emphasis on immigra- 
tion law. He Is a member of the Board of Directors of the One-Stop Immigration Center, Inc. 
He serves as the Treasurer of the Filipino American Community of Los Angeies, inc., and is 
a member of the Filipino Lawyers Association of Southern California. 

Dr. Leung Is a Professor of International Relations at Seton Hall University. He is an expert 
on the People's Republic of China, East Asian International Relations, and bilingual educa- 
tion. 

Mr. Mukal is a Los Angeies attorney with the firm of Nishlyama, Mukai, Leewong, Evans, & 
Saldin. He specializes in immigration law, and has spoken on immigration law before the 
Minority Bar Conference in Los Angeles and the Japanese Bar Association. He Is a legal 
advisor to the Korean Association of Southern California. 

Dr. NIshlkawa Is an assistant professor of Multi-Cultural Education at the University of San 
Francisco. He Is concerned with the problems of Japanese-Americans and U.S.-Japanese 
relations. 



Foreign Policy & 
Immigration 



221 



OCHI, Ros« Matsui 



SURH, Thomas 



SUR, Wllma 



THU, Vu K. 



VAN CHAU, Nguyen 



Ms. Ochi is an attorney and executive assistant to the Mayor of Los Angeles. She is a 
member of the Select Commission on Immigration and Refugee Policy and a Director of 
the City Criminal Justice Planning Office. 

Mr. Surh Is the Public and Congressional Affairs Officer for the Select Commission on 
immigration and Refugee Policy. He has served as the Staff Attorney for the Legal Aid 
Society of Alameda County In Oakland, California, as well as the legal counselor to the 
Korean Community Service Center in San Francisco. 

Ms. Sur Is a Los Angeles attorney In private practice. She has participated In the panel on 
Minority immigration Problems before the Select Commission on Immigration and 
Refugee Problems In Los Angeles. She has a master's degree In Asian History from the 
University of Hawaii. 

Mr. Thu has served as a diplomat in London, Seoul, Manila, and Paris. He Is currently Vice- 
President of the Vietnamese Senior Citizens Association of the Washington Area. His full- 
time job covers the field of immigration law and resettlement of displaced persons. 

Dr. Van Chau is the coordinator of the Indo-Chinese Refugee Service in Southeast Texas. 
He Is a founding member of the Indochlnese Refugee Coalition, and was formerly the 
Secretary General of Pax Romana Vietnam. 



222 



International Trade 

KEYNOTER: Hon. DavM J. Dunford 

Deputy U.S Trade Representative for Bilateral Affairs 
with Oflice of the U.S. Trade Representative 

Emphasizing the Importance of Expanding U.S. Trade with Asia and talking very pragmatically about Trade Missions In the 
1980's. conferees at the International Trade Wortcshop expressed thoughts on what could and should tie done to encourage 
and develop more International trade In the Asian arena. 

WORKSHOP CHAIR: 

Jun Mori, Esq. Jun Mori is a Los Angeles attorney with the firm of Mori and Ota. He is a member of the President's Export 
Council and serves as Chairman of the Export Council's Oversight Task Force of the subcommittee on GATT. He is Vice- 
President of the Los Angeles Board of Harbor Commissioners, and a member of the Advisory Board lo California's Office of 
International Trade. He is a member of the UCLA Foundation Board of Trustees and the Democratic National Committee's 
Finance Council. 

PANEL CHAIRS: 

EXPANDING U.S. TRADE— Dr. James Hsiung. 

Dr. Hsiung, a Professor of Politics with New York University, Is author of several books on China and maintains general In- 
terests in International relations and comparative foreign policy. He is Director of Graduate Studies and Director of the 
Modern Far East Program in the Politics Department at NYU. He chairs the Foreign Policy Commission, the Asian- 
American Assembly for Policy Research, and is on the Board of Directors of the Chinese-American Academic and Profes- 
sional Association. 

TRADE MISSIONS— Kenneth Char, Esq. 

Mr. Char is Vice-Chair of Aloha Airlines and Vice-President of Air Micronesia, Inc. Among his wide range of activities, he is 
Director of Grand Pacific Life Insurance Co., Ltd.; Director of the Chinese Chamtser of Commerce In Hawaii; Chairman of 
the East-West Center Board of Governors; Chair of the Governor's Advisory Council on China Affairs; memtjer of the Hawaii 
Bar Association; member of the Hawaii District Export Council; Honorary Consul lor the Republic of Nauru in Hawaii; 
Chairman of the Advisory Board, School of Public Management; and member of the President's Board of Foreign Scholars, 
International Communications Agency. 

PANELISTS: 

Expanding Trade Presenters: 

Kenneth King, Jay W. Kim, Alan Chien. and George SyCip. 

Expanding Trade Respondents: 

Brooks Browne and Ray Elselt. 

Trade Missions Presenters: 

Edward Lee, Charles Kim, Indravadan Shah, and Norman Lau Kee, Esq. 

Trade Missions Respondents: 

Brad Tyrell and Joseph Whelan. 



.^„'j:^.v-nrmu.rs>r 



223 



International Trade 

BROWNE. Brooks 
CHIEN, Alan 



EISELT, Ray 
KEE, Nomtan Lau 

KIM, Charles 
KIM, Jay W. 



KING, Kenneth 
LEE, Edward 

SHAH, Indravaden 



SYCIP, George 

TYRRELL, W. Bradley 
WHELAN, Joseph 



Mr.Browne is an investment oHicer with the Overseas Private Investment Corporation. 

Mr Chien received his M.S. from Columbia University, N.Y. He Is the Director of the Abacus 
Group of America, inc., of N.Y. He is a leading U.S.-China trade specialist, and advisor to 
the Importers and Retailers Textile Advisory Commission of the U.S. Department of Com- 
merce. 

Mr. Eiselt is the Regional Marketing Manager for Hong Kong, Japan, and Korea with the 
U.S. Department of Commerce. 

Mr Kee is a New York attorney with the firm of Kee and Lau-Kee. He is the Chairman of the 
Federal Advisory Committee to the Immigration and Naturalization Service. He pursues a 
wide range of community activities, and is a member of the Board of Directors of numerous 
organizations including the Greater New York YMCA and the Hamilton-Madison House. 

Mr Kim is a prominent New York businessman, active in promoting trade between the U.S. 
and Korea in a wide variety of ventures. He frequently travels to Asia in his role as Presi- 
dent of Metro Charles Co., Inc. Kim is a leading figure in the New York Korean Amencan 
community where he serves as President of the Asian American Development Council and 
is active politically at the national level as a member of the Democratic National Commit- 
tee's Finance Council. He ser/es as Treasurer of the U.S.-Asia Institute. 

Mr Kim is the Chief Executive Officer of JWK international Corp., a successful high- 
technology research firm, and Chair of the International Trade and Investment Corporation. 
He Is a member of the Board of Trustees of the D.C. Chamber of Commerce, an honorary 
member of the Board of Directors of the Asian American Community Sen/ice., Inc., and a 
member of the Board of Directors of the League of Korean Americans. 

Mr. King is a partner in the firm of Bradbury, Erfan and King, Architects. 

Mr. Lee is the Vice-President of the Taroco Capital Corp. of New York, and Is a specialist in 
MESBIC financing. 

Mr Shah is a management consultant in international marketing, trade, and real estate. He 
is a member of the Ethnic Panel to the Mayor of New York, and the former Vice-President of 
the Federation of Indian Associations. He is a member of the ad hoc Committee of 
National Association of Asian Indian Organizations. 

Mr SyCip is currently with the American Express International Banking Corporation. Born 
in the Philippines, Mr. SyCip has been in the U.S. since 1971, has studied international 
Relations at Stanford University, and has worked with various Asian American groups in 
California and New York. 
Mr. Tyn-eli is Chief of the Trade Missions Branch at the U.S. Department of Commerce. 

Mr. Whelan is the Director of the Investment Missions Program of the Overseas Private 
Investment Corporation. 



224 



Small Business 

KEYNOTER: Hon. A. Vcmon WMtMr 

Administrator 

Small Business Administration 

Dlscusslno past accomplishments and future needs, those attending the Small Business Workshop examined the Inter- 
relation of Small Business and the Aslanffacltic American In the 1980's, and offered views on Community Economic 
Development tor the Aslan/Paclfic Community. 

WORKSHOP CHAIR: 

Ctwn Tom. Mr Tom Is President and Chief Executive of Mah Chena Corporation, one of the largest Importers of Oriental 
food products In the Midwest. He Is a Commissioner of the White House Conference on Small Business. Mr. Tom Is the 
Director of the Chinese Community Center In Chicago, and was responsible for obtaining tax-exempt status (or the 
Chinese Consolidated Benevolent Foundation. 

PANEL CHAIRS: 

SMALL BUSINESS— Mai H«« Wallace. „ , ^ . , 

Ms Wallace is currently serving as Women's Business Enterprise Specialist In the Office of Women s Business Enterprise 
of the U S Small Business Administration. Prior to Joining the staff at the national SBA office, Ms. Wallace *o*»dJn 'fi« 
Minority Small Business Capital Ownership Development division of SBA's Washington, D.C. district office. As a Ph.D. can- 
didate, she also taught at the University of Maryland. 

COMMUNITY ECONOMIC DEVELOPMENT-Wllllam J. Leong. „ ., , ^ „ „.,=hii.K«H 

Mr Leong Is the Initiator and Executive Director of the Chinese Economic Development Council. Mr. Leong established 
CEDC as the community development corporation for the Chinese-American community In Boston. Since Its Inception In 
1974 the CEDC now has programs In housing, business, and community development. The CEDC receives Its primary fund- 
ing from the Office of Economic Development of the Community Services Administration. 

PANELISTS: 

Small Business Presenters: ^ ^ „ 

George Pan, Bahk Sang, Alvln Joe, Pedro B. Supelana, David Chang, and Gordon Yamada. 

Small Business Respondents: 

Michael Casey, William Clement, and Phillip Sprague. 

Community Economic Development Presenters: 

Norman Chung, JIro YamaguchI, Esq., Gerald Wong, and Les Hamasakl. 

Community Economic Development Respondents: 

Richard Fleming, Steven Price, and Fred RIccl. 



KJy.iiffai,xMsaiaa 



225 



Small Business 

CASEY, Michael 

CHANG, David 

CHUNG, Nonnan 

CLEMENT, William 
FLEMING, RIctuird 

HAMASAKI, Las 

JOE, AMn 

PAN, Georga 



PRICE, Stephen 
RICCI, Fred 

SANG, Bahk 
SPRAGUE, Phillip 



Mr. Casey Is the Associate Administrator for investments with the Small Business 
Administration. 

Mr. Chang, M.S., Ph.D., is the President of Taroco Enterprises and the Taroco Capital Cor- 
poration In New York City, and has extensive experience in small business and trade. 

Mr. Chung is the Associate Director of New/ Yori< interface Development, Inc. He is Involved 
in economic development, child welfare, and community development. He Is a board 
member of the Asian American Legal Defense and Education Fund, and Is currently re- 
searching the evolution of decentralized education since 1969, funded by the National 
institute of Education. 

Mr. Clement Is the Associate Administrator for Minority Small Business In the Small 
Business Adrriinistration. 

Mr. Fleming is the General Deputy Assistant Secretary for Neighborhoods, Voluntary 
Associations, and Consumer Protection with the IJepartment of Housing and Urban 
Development. 

Mr. Hamasal<i is an urt>an planner for the city of Los Angeles, as well as the Executive 
Director for the Japanese American Community Planning and Development Council, a nocv 
profit voluntary community organization. 

Mr. Joe is the President of Geo/Resource Consultants, a geo-technicai and geological firm. 
He Is a member of the National Advisory Council to the State Department of East Asian 
and Pacific Affairs. 

Mr. Pan is a Boston area businessman, founder and President of Systems Architects, inc., 
a ten-year old computer company providing computer support to a numlser of government 
organizations such as the IJepts. of Defense, HEW, Transportation, and the Consumer 
Product Safety Commission of the Small Business Administration, as well as to major 
industrial institutions. The company is also currently providing a Procurement Automated 
Source System (PASS) to the SBA on a nation-wide basis. 

Mr. Price is a partner with Ken S. Sweet and Associates. 

Mr. RiccI is the Special Assistant to the Assistant Secretary for Economic Development In 
the Economic Development Administration. 

Dr. Sang is the President of Young Video, Inc. He is a member of the Presidential Advisory 
Committee on Small and Minority Business Ownership, and is an Adjunct Professor at 
Kean College, New Jersey. 

Mr. Sprague is the Associate Administrator for Management Assistance with the Small 
Business Administration. 



"•*^ — ^'-T i 'i -7^"--^ '-"- -■■ -.^ -zaraaBSK 



226 



Small Business 

SUPELANA, Padro Mr Supelana Is the President of Cosmopolitan Advertising, Inc. He Is ttie Immediate past 
President of tfie Filipino Executive Council of Greater Plilladelphla. and tfie Chairman of 
the Eastern Region of the Congress of Filipino Americans. Mr. Supelana Is an Immediate 
past Grand Knight of San Raphael Council #7125 of the Knights of Columbus, and lUe 
President of the Philippines Center Foundation. 

WONG, Gerald Mr. Wong Is the President of the Magnolia Plumbing and Heating Co., Inc., the only Asian 
American major mechanical contractor In Seattle. Mr. Wong Is also the Vice-President of 
the Central Contrators' Association. 



YAMADA, Gordon T. 



Mr. Yamada retired In 1977 from a senior executive career assignment In the Federal 
Government after completing more than 32 years of service. Subsequently, he founded an 
International management consulting firm which now numlsers atout 45 employees. He is 
presently Involved with foreign interests In development ventures. 



YAMAGUCHI, JIro 



Mr. Yamaguchi is an attorney in private practice In Chicago, Involved in the remodeling of 
old buildings. He Is also the Treasurer of the Japanese Civic Association Credit Union. 



.ii^sKaevjcci 



227 



Political Leadership & 
Organization 

KEYNOTER: Hon. SparV M. Matsunaga 

U.S. Senator 
State of Hawaii 

Taking a very pragmatic approach to Asian/Pacific American political involvement, those attending the Political Leadership 
and Organization Workshop exchanged ideas vtiith public officials and political activists on Building a National Political 
Power Base for Asian/Pacific Americans, and encouraging State and Local Political Participation. 

WORKSHOP CHAIR: 

Judge Hanry W. Low. Mr. Low serves on the Superior Court of California for San Francisco County and has been a judge 
for more than 13 years. He Is the immediate Past President of the California Judge Association, sen/es on the State Judicial 
Council, and was editor of the California Courts Commentary from 1973-76. He Is currently Chairman of the Education 
Center for Chinese, President of the San Francisco City College Foundation, Past President of the Chinese-American 
Citizens' Alliance, and serves on numerous civic and charitable organizations. 

PANEL CHAIRS: 

NATIONAL POWER BASE— Dr. Chong-slk Lee. 

Dr. Lee is a professor of Political Science at the University of Pennsylvania and author of numerous books and articles on 

China, Japan, and Korea. One of his Ixxjks (Communism in Korea, coauthored with Rot)ert A. Scaiapino) won the Woodrow 

Wilson Award of the American Political Science Association in 1975 as the best txxjk published In the U.S. during the 

previous year in politics, government, and international affairs. 

STATE & LOCAL PARTICIPATION— Judge William M. Marutanl. 

Mr. Marutanl is a Philadelphia Judge on the Pennsylvania Court of Common Pleas. He has served as National Legal 
Counsel and National Vice President of the Japanese American Citizens' League. He Is a member of the Asian Law Caucus 
(New York and California), and the Asian American Council of Philadelphia. 

PANELISTS: 

National Power Base Presenters: 

Williamson Chang, Rotjert Char, Ron Ikejiri, Esq., Ruth Watanabe, and Mike Masaoka, Esq. 

National Power Base Respondents: 

Congressman Daniel K. Akaka, Congressman Robert T. Matsui, and Congressman Norman MIneta. 

State & Local Presenters: 

Arlene Oki, Dean Fong, and Harry Joe, Esq. 

State & Local Respondents: 

Wilbur Luna. 



i:£Tr.S?»KftWj';7;- 



228 



Political Leadership & 
Organization 



AKAKA, DanM K. 
CHANQ, Wllllamton 

FONQ, DMn 
IKEJIRI, Ron 

JOE, Harry Jam** 



LUNA. Wilbur 

MATSUI, RotMrt T. 

MASAOKA, MIk* 



MINETA, Noman Y. 
OKI, Alton* 



WATANABE, Ruth 



Congressman AKaka represents the 2nd Conoresslonal District In Hawaii. 

Mr. Chang Is an assistant law professor at the University ot Hawaii at Manoa. He teaches 
corporate tax law, security adnninlstration, and water rights. He Is currently conducting a 
research project on native Hawaiian rights, and Is writing a book on security regulations. 

Mr. Fong is Vice-President of the United Democratic Organization, and Is on the staff for 
the Mayor of New York City. 

Mr. ikejiri Is the Washington representative and chief legislative lobbyist for the Japanese 
American Citizens' League. He Is a member of the Japanese American Bar Association of 
Los Angeles, as well as the Japanese American Democratic Club of Los Angeles. 

Mr. Joe Is an attorney In private practice in Dallas, Texas. He Is the Chairman of the Texas 
Chapter of the Association of Immigration and Naturaiity Lawyers. Mr. Joe is also Chair- 
man ot the Government Liaison Committee on Regional Commissioners for the A.i.N.L He 
Is serving on the Unauthorized Practice of Law Committee for the State Bar of Texas, and 
on the international Law Committee for the Dallas Bar Association. 

Mr. Luna Is a Human Relations Specialist with the National Education Association. 

Congressman Matsul represents the 3rd Congressional District in California. 

Mr. Masaoka Is the President of Masaoka-ishikawa Associates, an economic consulting 
firm. He served for over 30 years as the Washington, D.C. representative of the Japanese 
American Citizens' League. Masaoka has played a major role In all legislation benefitting 
Asian Americans since World War 11. He Is currently working on U.S.Oapan trade and other 
relations. 

Congressman Mineta represents California's 13th Congressional District. 

Ms. Okl Is the Special Assistant to the Mayor of Seattle. She Is a Board Member of the 
Japanese American Citizens' League, a memlier of Asian Americans for Political Action, a 
Precinct Commltteewoman since 1972, delegate to the 1976 Democratic National Conven- 
tion, former cochalrperson of the King County Affirmative Action Committee, and member 
of the Washington State Affirmative Action Committee. 

Ms. Watanat>e Is an energetic and concerned leader of the Japanese American community 
in Los Angeles. She is a Board Member and Secretary/Treasurer of the Japanese American 
Community Planning and Development Council. She Is a member of the California 
Republican State Central Committee. 



t rm r fitfr^ • ' *v ^M«**^>^^*i«M««»-ff«"»z*' «q>i«*'»^^ ' ^^*««w» 



■MrtrrWif-BrifT 



229 



Human Services 

KEYNOTER: Hon. Sarah Weddln0ton 
Special Assistant to the 
President of the United States 

Addressing the humanistic and social needs of the Aslan/Paclfic community, participants In the Human Services 
Workshop covered only a few segments of the broad human services area, Including: Social Services, Affordable Housing 
for Family and Elderly, and Health and the Aslan/Paclfic American. 

WORKSHOP CHAIR: 

VIctoflna S. Peralta. Ms. Peralta, MSW, presently Director of Adult & Aging Services, City of Philadelphia, Is a nationally- 
recognized social worker In the field of aging who has received many awards for her outstanding contributions In the field 
of Human Services. She Immigrated to the United States in 1965 at the height of her career as a nurse-social worker. Since 
tfien she has been an outspoken advocate for the benefits, rights and entitlements of Asian/Pacific Americans In the United 
States, particularly In the field of aging. 

PANEL CHAIRS: 

SOCIAL SERVICES— Dr. Herbert Wong. 

Dr. Wong Is the Executive Director of Richmond Area Multi-Services, Inc. He is also the Program Director and Principle Inves- 
tigator of the National Asian American Psychology Training Center. He is the Principle Investigator for the Bay Area In- 
dochlnese Mental Health Project and a member of the Board of Directors of the Asian American Psychological Association. 

HOUSING— Thomas Hsieh. 

Mr. Hsieh Is President of the firm, Thomas HsIeh, AIA Architects. The firm specializes In hospital and housing projects 
located in the states of California, Nevada, Utah, New Mexico, and Arizona. He is the Director of the Bay Area United Way 
and the Marshall Hall Memorial Hospital. Mr. Hsieh is also the Chairman of the U.SVChina Relations Committee of the San 
Francisco Chamber of Commerce. He has been a member of the California State Democratic Party and the White House 
Conference on Aging. 

HEALTH— Dr. Rldiard Hsieh. 

Dr. Hsieh, Dr. Ph., M.D., is a member of the faculty of the Health Services Administration at the School of Hygiene and 

Public Health at Johns Hopkins University. He Is also the Chief of Health Services Research, Public Health Services 

Hospitals. 

PANELISTS: 

Social SeivlcM Presenters: 

Edwin Hiroto, Annie Chung, Jackie Bong Wright, and Dr. Helen Nagtalon-Mlller. 

Social Services Respondents: 

Roberto Anson, Eleanor Bader, and Hon. Al Stern. 

Housing Presenters: 

Cecilia Yep, Edward Chin Park, Dr. Youn Chey, and Gordin Chin. 

Housing Respondents: 

Anthony Freedman and Alex PIres. 

Health Presenters: 

Dr. Alex Alexander, Dr. Steven Shon, Francis Chang, Esq., Dr. Ray Murakami, and Dr. William K. K. Wan. 

Health Respondents: 

Evelyn Lee, Dr. Samuel Lin, and Dr. John Marshall. 



230 



Human Services 



ALEXANDER, C. Al«x Dr. Alexander, M.D., M.Ph.. Dr. Ph., Is trie Chief of Slaff at the Veterans Administration 
Hospital In Dayton, Ohio, as well as Clinical Professor in the Department of Community 
Medicine at Wright State University School of Medicine in Ohio. 

ANSON. Roberto Mr. Anson Is a Policy Analyst at the White House Conference on Aging. 

BADER, Eleanor Ms. Bader is the Special Assistant to the Associate Commissioner for External Affairs of 
the Social Security Administration. 

CHANQ, Francis Mr. Chang is a lawyer, and the Executive Director of the South Cove Community Health 
Center In Massachusetts. 



CHEY. Youn 
CHIN, Qordon 
CHUNQ. Annia 

FREEDMAN, Anthony 
HIROTO, Edwin 

LEE, Evelyn 

LIN, Samuel 

MARSHALL, John 

MURAKAMI, Ray 



Dr. Chey, Ph.D., Is the Executive Director of the Multiservice Center foi Koreans In San 
Francisco. Dr. Chey received her Ph.D. in Russian language and literature from Yale Univer- 
sity. 

Mr. Chin is the Executive Director of the Chinatown Neightwrhood Improvement Resource 
Center. His agency Is engaged in planning and Implementing housing, open space, 
neighborhood street, and transportation Improvements in San Francisco Chinatown. 

Ms. Chung Is the Project Director of Senior Employment and Training at Self Help for the 
Elderly In San Francisco. She is a memt)er of the National Home Caring Council, Inc., a 
national body which coordinates home health care programs. She Is also a member of the 
Asian/Pacific American Elderly Resource Center. 

Mr. Freedman is the Acting Deputy Secretary for Policy and Budget at the Department of 
Housing and Urt>an Development. 

Mr. Hiroto is the Chief Executive Officer for City View Hospital, the Keiro Nursing Home, 
and the Japanese Retirement Home. He Is highly active In the Japanese American Conn- 
munlty In Los Angeles. 

Ms. Lee Is a Social Science Analyst at the Alcohol, Drug Abuse, and Mental Health Admini- 
stration. 

Dr. Lin, M.D., Ph.D., is the Director of the Office for Europe In the Office of International 
Health! U.S. Public Health Service. 

Dr. Marshall is the Deputy Director of the Bureau of Community Health Services In the 
Health Systems Administration. 

Dr. Murakami Is in private dental practice. He is a member of numerous dental organiza- 
tions and associations and has participated in a number of lectures, scientific sessions, 
and seminars. He has served as a consultant to the State Department In the dental field. 
He has published and prepared visual aids, handbool^s, and manuals on being a dental 
cllnlcan. 



Human Services 



231 



MILLER, Helen Nagtalon- 



PARK, Edward Chin 

PIRES, Alexander 
SHON, Steven 

STERN, Al 
WAN, William K. K. 

WRIGHT, Jackie Bong 
YEP, Cecilia 



Dr. Miller is Project Coordinator of the Disadvantaged Minority Recruitment Program of the 
School of Social Work, Univ. of Hawaii. She was previously with the Dept. of Educational 
Foundations, Curriculum Research Development Group, and the European Languages 
Dept. of the Univ. of Hawaii. She Is the former Administrator of the Hawaii Bilingual/ 
BIcultural Education Project. She Is Chairperson of the Ethno-Cuiturai Task Force of the 
State Mental Health Division, member of the State Mental Health Advisory Council, and 
member of the Board of Directors of the Mental Health Association in Hawaii. 

Mr. Park Is an architect from MIT. He received an M.A. in architecture from Harvard as a 
student of Walter Gropius, and specializes in Bauhaus design. Mr. Park also has an M.A. 
from Han/ard In city planning. He has a particular interest in urban planning and Chinese 
community development in Boston and in Washington, D.C. He is a Washington, D.C. 
government consultant on the Chinese community. 

Mr. PIres Is the Deputy Assistant Secretary for Multifamily Housing in the Department of 
Housing and Urtan Development. 

Dr. Shon, M.D., is the Director of the Adult Service Richmond MAXI Center. He is also a 
training coordinator for the Bay Area indochinese Mental Health Project. He is a Clinical 
Professor at the University of California in the Department of Psychiatry. He Is Chairman of 
the Board of Directors of the Korean Community Service Center, and Chairman of the 
National Consultation for Asian/Pacific American Mental Health. 

Mr. Stern Is the Associate Director of the White House Domestic Policy Staff. 

Dr. Wan, M.D., D.Ds., D.Ph., received his dental degree in Australia and his M.D. from 
Loyola University Medical School. He is In private practice in medicine and dentistry In 
Chicago. Dr. Wan is a former full-time faculty member of Loyola University Dental School. 

Ms. Wright Is the Director of the Indochinese Refugee Social Services and a consultant for 
ACTION. She has been active in resettlement and social service programs for Indochinese 
refugees. She is a member of the National Advisory Council for East Asian and Pacific 
Affairs, and former Chairwoman of the Planning Committee of the Business and Profes- 
sional Women's Club of Vietnam. 

Ms. Yep is the Executive Director of the Philadelphia Chinatown Development Corporation. 
She is also a member of the Mayor's Complete Count Committee, Census '80, and a reci- 
pient of the Human Rights Award from the City of Philadelphia Commission on Human 
Rights. 



' jJW- w>!' .vj « i^w&u ' wyw» '3r w^ ' .-vjh.*>j '^-vgaaaE5'5wi»afiafeK!:a.-2 



232 



Education & Science 

KEYNOTER: Hon. Jo«u« QonzalM 

Assistant Secretary for Bilingual Education and 
Minority Affairs, U.S. Department of Education 

The Education and Science Workshop examined the worlds of science and education as they affect the Aslan/Paclfic 
American, and participants made observations/suggestions for tfie role of the Aslan/Paclfic community In progressing to 
the 1960's. 

WORKSHOP CHAtR: 

Dr. C. W. Woa Dr. Woo Is the Provost of Ravelle College and Professor of Physics at the University of California at San 
Diego. He has written over 100 publications In theoretical solid state and liquid state physics. Dr. Woo Is President of the 
Chicago Chapter of the National Association of Chinese Americans, and a member of several National Science Foundation 
Advisory Committees. 

PANEL CHAtRS: 
SCIENCE— Dr. WInbwg Chal. 

Dr. Chal Is ttie author of more than 15 tKX>ks and numerous articles on history, culture, philosophy, and society, and Is the 
former Vice-President for Academic Affairs at the University of South Dakota. He Is presently distinguished Professor of 
International Studies and Humanities, and Assistant to ttie President of the University of South Dakota. 

EDUCATION— Dr. Raj Praaad. 

Dr. Prasad Is the Superintendent of Schools of San Mateo County, California. 

PANELISTS: 
Science Pi^iaiitMi: 

Dr. H. C. Lin, Dr. Stringner S. Yang, Dr. Daniel Watanabe, and Or. Shlh4(ung Liu. 

Scienc* Respondents: 

William De'' BIng, Dr. Marjorle Gardener, and Dr. Ton! Joseph. 

Education Presenters 

Dr. RolDert Suzuki, Dr. Nguyen Ngoc BIch, Dr. Byung H. Nam, and Dr. Vergle Chattergy. 

Education Respondents: 

Ot. Gladys Hardy and Dr. Kyo Jhln. 



xiaaavmiasmvtjis^-inak^tiaxeiiiaajui^i: 



233 



Education & Science 



BICH, Nguyen Ngoc 

CHATTERGY, Vaiyle 
DER BINQ, William 

GARDENER. Marjorle 

HARDY, Gladys 
JHIN, Kyo Rhoon 

JOSEPH, Ton! 
UN, H. C. 

LIU, Shlh-kung 
NAM, Byung H. 

SUZUKI, Robert 



Mr. Bich Is a Vietnamese Resource Specialist In Arlington, Va. He Is a national consultant 
on refugee education, and a state delegate to ttie National Association for Vietnamese- 
American Education. He is also a member of the National Association for Asian/Pacific 
American Education. 

Dr. Cfiattergy is an Associate Professor of Education at the University of Hawaii at Manoa. 

Mr. der Bing is Manager of Protocol and Community Affairs at the Lyndon B. Johnson 
Space Center in Houston. He helped found the Houston Chapter of Chinese Associations. 
He was also Past President of the Chinese Professionals Club. 

Ms. Gardener Is the Director of the Science Education Resource Improvement Division of 
the National Science Foundation. 

Dr. Hardy Is the Acting Director for Management at the National Institute of Education. 

Dr. Jhin is the Acting Executive Officer of the Office of School Improvement In the U.S. 
Department of Education. He Is the former Executive Director of the Alatiama Regional 
Education Service Agency, as well as Vice-Chalrman of the National Advisory Council on 
Adult Education. Dr. JhIn was selected as one of the Four Outstanding Young Educators of 
America by the U.S. Jaycees In 1969, and Is a member of the President's Club of Alattama 
and the Alabama Democratic Club. 

Dr. Joseph Is the Associate Director for Field Operations Management with the U.S. 
Department of Energy. 

Dr. Lin is a Professor of Electricai Engineering at the University of Maryland. His field is In 
semi-conductor and integrated circuits. He Is a Fellow of the Institute of Electrical and 
Electronic Engineers, and a member of the Chinese Institute of Engineers. Dr. Lin Is a 
Charter Memtier of the Organization of Chinese Americans. 

Dr Liu Is a Research Group Leader with the Monsanto Company. He Is the National Vice- 
President of the Organization of Chinese-Americans. He received his Ph.D. in chemistry 
from Florida State University in 1955. 

Dr Nam is a Professor of Education at Pace University In New Yort<, and author of 
numerous publications on education and psychology. He Is a leading member of the 
Korean community of New York, where he senses as a member of the Board of Directors of 
the Korean Association of New Yorlc. He is a memt>er of the National Advisory Council on 
East Asian and Pacific Affairs, and a member of the Commission on Presidential Scholars. 

Dr. Suzuki Is a Professor of Education at the University of Massachusetts at Amherst. His 
areas of specialization are In Asian-American Studies and Multicultural Education. 



83-514 0-81-16 



234 



Education & Science 



WATANABE, Daniel 



YANG, Strlngner S. 



Dr. Watanabe Is a Research Assistant Professor at the Baylor College of Medicine. He Is 
the First Chairman of the Annual Asian American Festival In Houston. Or Watanabe Is 
also a memtjer of the Japanese American Citizens' League, and the former President and 
now memtier of the Japanese American Cultural Exchange Society in Syracuse, New York. 

Dr. Yang is a senior investigator (chemistry) engaged In cancer research at the National 
institute of Health. She is a memtier of Sigma Xi, the American Society of Cell Biology, the 
American Association for Cancer Research, the American Association for the Advance- 
ment of Science, the American Association of Tissue Culture, and a Charier Member of the 
Organization of Chinese-Americans. She also sings Chinese Opera. 



235 



7980 Leadership Conference 

DELEGATES 

In an attempt to draw a geographic and 
ethnic cross section of participants, the 
1980 Conference Committee established a 
system of delegate selection whereby dele- 
gates were chosen from nine pre-established 
regions: New England, New York/New 
Jersey, Mid-Atlantic, South, Midwest, Pacific 
Northwest, Los Angeles, San Francisco, and 
Pacific Island. Delegates to the Conference 
were given full voting privileges in the formu- 
lation of the Asian/Pacific position papers 
included in this Journal. 

The individuals listed on the following 
pages were chosen to represent their re- 
spective regions at the 1980 Asian/Pacific 
American National Leadership Conference: 

Vinod Agarwal 
Alice Barkley 
Jocelyn Barton 
Eleanor Der Bing 
May Chan 
Michael Chan 
Rak Chandulal 
David Chang 
Si Wha Chang 
Steven Chang 
Chiang Cheng 
James Cheng 
Thomas Cheng 
Tuan Cheng 
T. T. Chiang 
Louis Chin 
Patrick Chin 



Peter Chin 
Muzaffar Chishti 
Kwang Nam Cho 
William Cho 
Byung Chui Choi 
Peter Hai Chung 
Tommy Chung 
Carey Col 
Ray Dianapeles 
Soichi Fukui 
Jackson Gfn 
Robert Guen 
Dung Nguyen Guoc 
Henry K. Han 
Tony Hom 
Mike Ito 
Ginnie Joe 
Glenda Joe 
Joe Jung 
Ik Jo Kang 
Carol Kawakami 
Charles K. Kim 
Choong Jae Kim 
David Daehyun Kim 
Jae Sul Kim 
Henri U. Kim 
San Jim Kim 
Sang Whal Kim 
Ethel Kohashi 
Han Mo Koo 
Florence Kong 
Takeshi Kubota 
David W. Kwon 
Krishna Lahiri 
Collin Lai 



236 



7980 Leadership Conference 



C. C. Lau 
William Leary 
Dong Ho Lee 
Dong Soo Lee 
Edward Eung Ho Lee 
Gene Lee 
Hedy Lee 
James Lee 
Rosi Lee 
S. T. Lee 
Ting Lan Lee 
Won Chul Lee 
Won Mo Lee 
Dennis Li 
Thomas Li 
Y. T. Li 

Nguyen Dang Liem 
Bob Lim 

Myung Sook Lim 
Young Sup Lim 
Dolly Lo 
Jennie Lowe 
Jimmy Lu 
Mimi Cnan Luk 
Frank M. Miu 
Kwang Huan Moon 
Fe Nievara 
Ron Ohata 
Do Young Paik 
George Pan 
Karen Pan 
Hee Soh Park 
Hyun Sun Park 
Hyung Joo Park 
Ji Wun Park 



Kap Young Park 
Richard Sang H. Park 
Siun Park 
Sook Nyu Park 
Reynaldo Pascua 
Bhailal Patel 
Kyung Hoon Pyio 
Chong Hie Rah 
So Chul Rah 
Chase C. Rhee 
Chul Gyu Rhee 
Socorro D. Rhee 
Thomas Sakata 
Lani Sakoda 
Suren Saxena 
Sung Kook Shin 
Yong Chul Shin 
Sharon Soohoo 
Dao Spencer 
Yee Yee Lay Stein 
Patrick Sung 
George Taki 
Robert Ting 
Cherry Tsutsumida 
Gonzalo Veiez 
Dely Villalon 
Anna Wan 
Kung Lee Wang 
Peter Weirsman 
Nicholas Wong 
Po Wong 
Gerald Yamada 
Chung S. Yang 
France Yokoyama 
Jim Ho Yum 



Our apologies to any- 
one not appearing on 
this list who served as 
a delegate to the 1980 
National Leadership 
Conference. 



237 



U.S.- Asia Institute 



BOARD OF DIRECTORS 



The U.S. -Asia Institute is governed by a Board of 
Directors wtiich has ultimate responsibility and author- 
ity for the overall management and policies of the Insti- 
tute. The Executive Director oversees the Institute's 



staff in Washington, D.C., manages the financial and 
business affairs of the Institute, and acts as the chief 
executive responsible to the Board in the formation of 
Institute policy. 




Chan Tom, III, is a highly productive and motivated, young. Chicago businessman, heavily 
involved In several affiliated corporations. As managing officer of Chinese Trading Com- 
pany and Chinese Noodle Company, he is directly responsible for these profit centers, and 
under his dedicated and enthusiastic leadership, these profit centers have demonstrated 
remarkable grovnth. He is a board member of the Lekel Chop Suey Pall Company, and is 
active in the Chinese business community aiding specifically in Chinese festivals. New 
Year fund Raising Dinners, and other Chinese civic activities. Politically, he is active in the 
Democratic National Committee. He serves as Chairman of the Board ot Directors for the 
U.S.-Asia Institute. 



1-- 



Charles Kim is a prominent New York businessman active in promoting trade between the 
U.S. and Korea in a wide variety of ventures. He frequently travels to Asia in his role as 
President of Metro Charles Co., Inc. Kim Is a leading figure in the New York Korean 
American community where he serves as President of the Asian American Development 
Council and is active politically at the national level as a member of the Democratic 
National Committee's Finance Council. He serves as Treasurer of the U.S.-Asia Institute. 




Ruth Watanabe is an energetic and concerned leader of the Japanese American community 

in Los Angeles. Her interest in the welfare of the Asian community is exemplified in her role 
as Board Member and Secretary /Treasurer of the Japanese American Community Planning 
and Development Council which is coordinating a multi-million dollar development project 
In Little Tokyo In downtown Los Angeles. The project will include a variety of cultural, 
business and public service facilities. She has been active In Republican party activities in 
the Southern California area. She serves as Secretary of the U.S.-Asia Institute. 



238 



U.S.Asia Institute 



Jojl Konoshlma has had a long, active history In New Vork labor pollllcs. The powerful New 
York Teacher's Union served as a classroom for Konoshlma who helped to form that union 
during the 1960's He convinced the union to give Its early support to Hugh Carey In his first 
bid for Governor of New York From there, he sprlngboarded Into national politics by 
pioneering support for Jimmy Carter's 1976 Presidential Campaign. He is currently Involved 
in a wide variety of political and public service activities. He Is the Director of the Asian/ 
Pacific American Unit of the Democratic National Committee; Executive Director of the 
US Asia Institute: and a member of the Federal Advisory Committee to the Immigration arx) 
Naturalization Semce. 



Esther G. Kee Is a whirlwind of energy with a myriad of interests and accomplishments. 
She has successfully managed her own business, worked with numerous community 
associations and development organizations, coordinated political functions and fund- 
raisers for national candidates as far back as 1956, served on the Citizens Advisory Board for 
WNET-TV and more, while doing an admirable job of raising her five children. She is the 
National Coordinator of the Asian/Pacific American Unit of the Democratic National Com- 
mittee and Associate Executive Director of the US -Asia Institute She has a leading voice 
In the direction of the the U.S. State Department through her service on the President's Ad- 
visory Board on Ambassadorial Appointments and the State Department's Selection Board 
Advisory Committee. 




George Aratanl is a Los Angeles businessman active in international trade and Japanese 
American community affairs. He has presided over the successful growth of two corpora- 
lions which he serves as Chairman— American Commercial, Incorporated and Kenwood 
Electronics, Inc. Aratani serves as Director of the Japanese Retirement Home and Director of 
the Los Angeles Area Council, Boy Scouts of America 




U.S.-Asia Institute 



239 



Kenneth Char has been a key figure in the development of Hawaii's travel and tourist Indus- 
try as Vice-Chair of Aloha Airlines and Vice-President of Air Micronesia, Incorporated. The 
range of his activities and public service Is truly astounding v»ith contribution of his time 
and efforts to state and national organizations. He is a Director of Grade Pacific Life In- 
surance Co.. Ltd.; Director of the Chinese Chamber of Commerce, Hawaii; Member of the 
Board of Foreign Scholars, International Communication Agency; Chair of the Governor's 
Advisory Council on China Affairs, Hawaii; Member of the National Advisory Council for 
East Asian and pacific Affairs; Member of the Hawaiian Bar Association; Member of the 
Hawaii District Export Council; Honorary District Consul. Republic of Nauru, and Chair of 
the President's Council on Foreign Scholars. 




Glenn Lau-Kee is a New York attorney involved in corporate, immigration and international 
law with the firm of Kee and Lau-Kee. He was formerly with the leading international law 
firm of Coudert Brothers in New York, and he has also obtained legal experience in Asia. 
Lau-Kee Is active in New York Chinatown civic affairs, serves on various YMCA boards, and 
serves on the President's Advisory Board of the Borough of Manhattan Community Col- 
lege, City University of New York. He is politically active with the Democratic National 
Committee Fmance Council. 




Nonnan Lau-Kee is a New York attorney with the firm of Kee and Lau-Kee. His practice has 
made him a leading expert on immigration law— acknowledged by his appointment to the 
Federal Advisory Committee to the Immigration and Naturalization Service, which he 
chairs. He is a leading figure In the political arena in his role as Deputy Campaign Chair- 
man for Asian/Pacific American Affairs for the Carter/Mondale Presidential Campaign and 
as a member of the Executive Committee of the National Finance Council at the 
Democratic National Committee, the Committee's key finance group. He pursues a wide 
range of community activities and is a member of the Board of Directors of numerous 
organizations as well as business corporations. Lau-Kee sen/ed as a Human Rights Com- 
missioner for New York during the administration of Mayor Abraham Beame. 



240 



U.S.Asia Institute 



Jun Mori Is a Los Angeles attorney with the firm of Mori and Ota, a firm known for Its 
representation of the subsidiaries of some of Japan's largest corporations He pursues his 
concern lor the U.S. role in (nlernalionai trade as a member of the President's Export Coun- 
cil which IS at the forefront of the U.S. export trade effort He is the Chairman of the Export 
Council's Foreign Oversight Task Force of the subcommittee on GATT and Vice-President 
of the Los Angeles Board of Harbor Commissioners and a member of the Advisory Board to 
California's Office of International Trade. His dual Japanese and American background 
provides the basis for the promotion of relations between the two countries in his role on 
the Committee on Pacific Basin Studies, University of California at Los Angeles. He is a 
member of the UCLA Foundation Board of Trustees and the Democratic National Commit- 
tee's Finance Council. 




John Young promotes relations between Asia and the US. in his role as Professor and 
Director of the institute of Far Eastern Studies at Seton Hail University He is the author of 
numerous publications on Asian studies and has extensive experience with research proj- 
ects in bilingual and bicultural education in the U.S. Young has a deep concern and interest 
In Asian language and culture and has contributed greatly to training persons as inter- 
preters. His concern for foreign policy caused him to be one of the principal creators of the 
National Advisory Council for East Asian and Pacific Affairs and the eventual Chairman of 
the body which serves as a liaison between the State Department's Bureau of East Asian 
and Pacific Affairs and the Asian/Pacific American community 



241 



U.S.-Asia Institute 



ACKNOWLEDGEMENTS 

The U.S.-Asia Institute would like to acknowledge the generous support and assistance of 
all those who played a part in the Conference— its preparation and followup activities. 

SPECIAL ACKNOWLEDGEMENT goes to: Senator Daniel Inouye, Hawaii, 
who keynoted the Plenary Session of the Conference. 

SPECIAL THANKS TO: 

1980 Conference Committee 

Workshop and Panel. Chairs 

Presenters and Respondents 

Workshop Recorders 

Delegates to the 1980 Conference 

Volunteers who prepared materials and staffed the Conference sessions 

Regional Coordinators: 

George Pan — New England 

Charles Kim, Dr. Bahk Sang, Dr. John Young — New York/New Jersey 

Dr. Jay W. Kim — Mid-Atlantic 

William and Eleanor Der Bing — South 

Tom Chan — Midwest 

Rey Pascua and Arlene Oki — Pacific Northwest 

Thomas Hsieh — San Francisco 

Siun Park — Los Angeles 

Kenneth Char— Pacific Islands 

ln;jivlduals and Corporations who sponsored the 1980 Journal 

Mary Sue Bissell for editing the Journal 

and all our friends and supporters. 



242 



Mr. Mazzoli. Thank you very much, Mr. Kee. I will yield myself 
5 minutes, if I could. 

Ms. Martinez, I can understand your situation in one respect, 
worrying about carrying a new card or using your social security 
card, because it might be used to discriminate against someone who 
does not look like an American. There are probably some people 
sitting up here right now that, if you want to talk about Americans 
as being Anglo-Saxons, do not look like Americans. And yet we 
carry cards and we show them to policemen, to get in or out of a 
building. We show them to the people at the supermarket to cash 
our checks. I do not have any particular untoward experiences 
with law enforcement. 

You obviously have studied this matter. But you can find no 
possible way in which such a card could be used, but not abused? 
You find no way such an identification could not be used to single 
you out for some type of static or hassle, but in fact would allow 
you to get a job at a good wage, where sometimes that is not the 
case now? 

Ms. Martinez. I understand that some of you think that is 
possible and I believe Father Hesburgh thinks that possible. Other- 
wise he would not be supporting the concept of employer sanctions 
with an ID card. But I heard Father Hesburgh argue that this 
would in fact help us prove our status and get government off our 
backs. 

I heard that argument. But I guess I have lived in this country 
too long. I have been hassled too much. I have represented Ameri- 
can citizens who have been beaten up, decorated Vietnam war 
veterans in the San Jose cannery during an INS raid. When you 
represent people in these types of situations and you see what 
happens to them 

I would urge you to read the story in the New York Time^ on the 
front page a few days ago, where the McAllen police department in 
Texas has been accused of police brutality and they said, there is 
no police brutality here. They put cameras in there and the cam- 
eras have now documented the police abuse of Mexican Americans. 

Mr. Mazzoli. Do not misunderstand. I know police brutality 
exists and I know there are bad apples in every barrel, and I am 
sure there is a whole series of things that you have seen that I may 
not have seen myself. 

But what I am saying to you is, you and I right now use cards. 
You have to show your bar association card to get a right to vote in 
a bar association meeting. We are always using some cards to 
identify us as John Jones or Mary Smith or Ron Mazzoli or 
whomever. 

All we are saying is that here is a way to identify a person as a 
person who has a legitimate right to have a job. With great respect, 
of course, for your panel, I share your concerns and I was going to 
ask them the same things. I tend to feel more as Father Hesburgh 
does, that without giving into the forces of evil, you can develop a 
plan that will identify people without at the same time setting a 
person up for being singled out for some kind of racial or sexual or 
religious persecution. 



243 

Ms. Martinez. Congressman, as a lawyer I have yet to see such a 
plan. And I guess what I am saying is, I have no difficulty with the 
identifying part, but it becomes a stigma. 

Mr. Mazzoli. What is stigmatic about carrying a card to show 
that you are a member of a bar association or that I am a licensed 
driver? Where is the stigma there? 

Ms. Martinez. There is none there, but we are talking about a 
different situation. 

Mr. Mazzoli. It would be the stigma of being able to have a job 
or not being able to have one. Would that not be the situation? 

Ms. Martinez. The stigma is how many people will hassle you 
and how many others will hassle Mexican Americans. 

Mr. Mazzoli. If I go in to get a job, and it seems like second 
nature to whip out my card and say, here I am, and I can take the 
job, what is the problem? 

Ms. Martinez. I know you believe that. But I live in another 
part of the country where I do not believe that will happen. I 
believe what will happen is that you will go in and because you 
have white hair and you are distinguished looking they are going 
to assume that you are a true-blue American. But I believe that I 
might go in there looking the way I look and they will not give me 
the same benefit of the doubt. That is what I believe. 

Mr. Mazzoli. I was referring to myself as maybe in some parts of 
America not looking like an American. My father was not born 
here in America and I have features that are not Anglo-Saxon. I 
am sure I could walk into a place and they could say, "Hey, this 
guy does not belong here." 

But if I have a card which states that I do have a right to belong 
and I do have a right to get a job and they cannot hassle me at 
that point, that may be better than letting them hassle me because 
they think I am an illegal or they think that I am undocumented. 

I have used virtually all my time. It is an interesting discussion. 

The gentleman from Wyoming. 

Senator Simpson. I really appreciate hearing your testimony. In 
my privileged time with the Select Commission and the hearings 
throughout the country, your views were heard. And they are still 
the same and I hear them again. 

And to you, Mrs. Martinez, there is no question in my mind that 
the Hispanic people feel the most threatened in this entire arena, 
and for good reason. They have the most to lose. And let us start 
with that premise. And I think that is very real. I really under- 
stand what you are saying. 

Your organization is stating, through your testimony here, that 
you are opposed to employer sanctions, opposed to increased border 
enforcement, opposed to temporary worker programs, and in favor 
of granting permanent resident status to all of those persons who 
managed to enter illegally. You state that existing labor laws 
should be vigorously enforced, and the Select Commission agreed 
on that by a vote of 16 to nothing; and that this measure will 
effectively control illegal immigration. 

And yet there are many, many who contend that it is really 
simply the ready availability of these workers in our labor market 
which leads them to be hired and not an attempt to exploit them. 



244 

so that even at the minimum wage certain employers will continue 
to prefer them over U.S. workers. 

I guess I am saying, is enforcement of existing labor law the only 
measure which your organization can offer to us as the committees 
that will grapple with this thing in a most extraordinary struggle? 
Is that the only thing you can give us, as an advocate, to cope with 
the current massive violations of our immigration laws in the 
United States? 

Ms. Martinez. I think we have tried to suggest more than that. I 
think we have tried to suggest that the solutions are not all to be 
found in the catchword that we call immigration. Many of the 
solutions are long term. They are to be found in helping Mexico 
help itself, in relieving the push in the push-pull factors. 

I think it is true, and that is a constructive way to look at the 
issue, instead of penalizing Mexican Americans and other foreign- 
looking Americans. I think that if you are looking for the solutions, 
I think they are there. But I do think that they are long range. 

I would like, if I could, to say just one thing about— you say that 
you want permanent resident alien status for those folks who are 
here who came in illegally, et cetera. I would like to explain 
why 

Senator Simpson. I only have a certain amount of time for my 
questions. I want to develop that, if I may. I will certainly hear 
that out, but I had a couple of other questions, because it has to do 
with what Senator Kennedy was saying and also what Congress- 
man Mazzoli, our chairman, was saying. 

You oppose the employer sanctions and I hear those reasons. You 
believe that discrimination will take place against Mexican Ameri- 
cans and other minorities and that it will be increased because 
these employers will be interpreting the immigration laws as these 
people present themselves. 

Yet, in an effort to counteract those effects, the Select Commis- 
sion overwhelmingly agreed that these employer sanctions would 
be based upon this secure, counterfeit-resistant form of identifica- 
tion, whether it was a card or whether it was a data system or a 
phone system. And the thing that I keep coming back to, that card 
or that identification will be required to be presented by all Ameri- 
can citizens at the time they go to get a job. If it is a card, it will 
not have to be carried on the person other than at that time. 

This is what I want to keep drawing back to. Nowhere have we 
said that we are going to let the Anglos off or the existing Ameri- 
cans off and just give the card to illegals. We are talking about a 
card whether it is a social security card, if we go to a card, revised, 
or what we are talking about something that is presented at the 
time of seeking employment by every single American, every single 
person. 

So where are we with the discrimination aspect? 

Ms. Martinez. In the implementation, Senator. You know, I can 
see — I can read what the Select Commission wrote. But I arn also 
aware of what happens between a law and the implementation of 
that law. 

The law is that local police officers may not stop people who they 
think are illegal. The implementation is that they do. 

Mr. Mazzoli. The gentleman's time has expired. 



245 

I guess I should not interject a thought, but it would be so much 
more helpful to us, if you could give us some wisdom, instead of 
just simply saying that everything which has been presented, not 
just by us but by this Commission, you cannot go along with. 

Maybe that is the situation. But you know, the law is going to be 
written one way or the other. Something is going to emerge from 
this Congress, in all likelihood, and I would love to see it bear some 
part of the imprimatur of MALDEF. 

The gentleman from New York, Mr. Fish, is recognized. 

Mr. Fish. Thank you, Mr. Chairman. 

I thank the panel and, like other Commissioners on the panel 
today, I welcome you all back. 

I tell you what, Ms. Martinez. You can be counted on to make us 
think. I was almost in favor of a foolproof ID card carried by every 
person in the country, because I figured that was the only way of 
avoiding the threat of discrimination against Hispanics. And now 
you have challenged that idea quite vigorously. 

I also want to respond briefly to some of the things you said, 
because we did, in my judgment — your very harsh criticism of the 
Commission does not really take into account the fact that we did 
listen. In fact, I think that the basic structures of the basic issues 
that we dealt with in terms of legalization and a totally new 
immigration policy in terms of numbers is definitely tilted in favor 
of Hispanics. 

In your four points, you call for recognition and expanding of 
traditional family reunification policy. That is the cornerstone of 
the admission policy that the Commission recommended. The 
150,000 outside the numerically limited people would be all imme- 
diate relatives. 

The legalization program has a bearing on this, because once you 
are granted permanent residence you have a right to petition, and 
as you become a citizen a few years later you have a right to 
petition, and who is going to be doing this? Well, certainly those 
countries which have the most — are the most recent stock are the 
only ones with near relatives abroad. 

So it is going to be China and India and the Philippines and 
Korea and the Dominican Republic and Mexico and Cuba and 
Columbia. That is going to be the next generation of immigrants 
into the United States through our family reunification policy, 
because people who have been here for 40 or 60 years do not have 
parents and spouses and children abroad. 

We then provided, realizing that there are a million outstanding 
visa petitions around the world, Mexico I think being the largest, 
we provided for 5 years extra, which in your testimony you refer to 
as a modest temporary increase of 100,000 a year in worldwide visa 
allotments proposed by the Commission, which would not reduce 
the Mexican backlog as long as the per-country limitation remains 
unchanged. 

Well, the specific recommendation of the Commission is that 
country ceilings apply to all numerically limited family reunifica- 
tion preferences except that for the spouses and minor children of 
permanent resident aliens, who shall be admitted on a first-come- 
first-served basis, with a worldwide ceiling set for that preference. 



246 

And I think that is again in recognition of where the problem is, 
and I thought we had helped to address it. 

The third point, by adjusting the status of undocumented work- 
ers who have equities in our society to permanent resident alien 
status, of course we all agree on, except that you disagree with the 
call for enforcement to be in place first, and that is the first time I 
have heard that expressed. 

Everybody else seems to be of the view that if we granted legal- 
ization tomorrow morning, next year or whenever, based on any 
date, that unless you had enforcement in place — and enforcement 
under the Commission report is known as the employer sanction 
primarily — that you simply have everybody and his brother coming 
into the country in order to qualify. And no matter what date we 
pick, the easiest document you can procure either outside the 
country or inside the country is proof of the fact that you have 
been in the country for the required number of months or years. 

So I merely want you to look at what we have done and see if 
you do not agree with me. We are not going to resolve the issue 
today, but I thought we had gone a long way in being true to the 
traditions of this country and to attempting to deal with. A, the 
backlog in visa applications and B, the family reunification mat- 
ters, and C, the adjustment of status by people here. 

My time is just about up, Mr. Chairman. 

Ms. Martinez. Can I respond a bit to that? 

I have thought long and hard about your comments and I truly 
value them. Congressman Fish. I guess I fear some of the traditions 
of our country. One of them is the scapegoating phenomenon. 
During the Depression we repatriated the Mexicans and their U.S.- 
born children. During the 1954 recession we had Operation Wet- 
back; ferret out those illegals and ship them back to Mexico. 

I fear those traditions and I fear that the climate, the tenor of 
the discussions that immigration is out of control, that there is 
nothing positive in immigration, there is nothing positive from 
these people, those are the things that I worry about, because the 
only person who said anything positive about it yesterday was 
Congressman Frank. And I went and thanked him for it, because I 
did not hear it all day long. 

And legalization may or may not benefit the Mexican communi- 
ty. If you have a continuous residency requirement, if you look at 
the Carter plan proposals on legalization, the INS chief indicated 
that Mexicans would not benefit, that the people who would benefit 
would be students who had overstayed their visas. 

These are the bits of information that I have and the fears that I 
have. 

Mr. Mazzoli. Thank you. 

The time has expired, but the Chair is constrained to say that I 
sat through those hearings yesterday for 3 ¥2 or 4 hours and heard 
a wide range of testimony, and yet you say the only thing positive 
you heard came from Mr. Frank. I have great respect for my friend 
from Massachusetts and he did say some kind things. Would you 
mean to say that nobody else on that panel and all of us who were 
there said anything positive? Nothing positive emerged from yes- 
terday's meeting, with the exception of the statement of the gentle- 
man from Massachusetts? 



247 

Ms. Martinez. I think I just said that, yes. I am sorry if you 
disagree. 

Mr. Mazzoli. Well, the gentleman from Massachusetts is recog- 
nized for more positive statements. 

Mr. Frank. Thank you. Now that I have been set up, Mr. Chair- 
man, I think what Ms. Martinez meant is not that the comments 
were not positive and worthwhile in terms of a solution, but talk- 
ing positively about the kinds of people who were coming over and 
their work efforts. 

Let me ask Ms. Simmons, if I could, to expand a little bit on the 
Haitians, because I agree with you that the record of the country 
in this regard has been discriminatory and I think it is discrimina- 
tory actions taken in cases like that that does lead to the kind of 
fears that are there, although I hope that we will ultimately be 
able to resolve them legislatively. 

What is it you would like to see Congress do with regard to the 

Haitians? 

Ms. Simmons. I would like to see the Congress treat the Haitian 
refugees in the same manner that they treat the European refu- 
gees and other refugees, that they would not make the kind of 
distinction as they made last summer when we were trying to get 
the boat people off the boats, that these people are fleeing from 
economic sanctions, that they are not political refugees. And as I 
probed, as I indicated, with State Department officials, when we 
kept talking he could not tell me the difference where the Haitians 
were concerned, the boat people, and the refugees who were 
coming over from Cuba. 

Mr. Frank. Well, now we know. One is authoritarian and the 
other is totalitarian. I do not think that that makes much differ- 
ence when you are on the refugee end. 

Ms. Simmons. That is right, because we felt sure, based on the 
information we had, that if those persons went back to Haiti that 
they would suffer politically. We felt that it was not just economic. 
And since we cannot seem to ascertain from official sources how 
they make the distinctions, then we think there is discrimination 
based on color. 

Mr. Frank. I appreciate that and I agree with you. I think that 
race prejudice was a factor in that decision, perhaps not a con- 
scious one, but clearly something that was there. I think that does 
contribute to the kind of fears we have had, although I would say 
to Ms. Martinez, I think this is a case where a lot of people who 
are well intentioned are trying to work together. 

And I understand the fear that you bring to this, because I guess 
part of it is— well, you say identity cards are going to be universal, 
but we know you only mean to use them for Mexicans. I think that 
might be a mistake. 

One of the advantages with the identity card has to do with the 
underground economy. We know more and more now that there 
are people who are working, of all ethnic groups and all sectors of 
the country, who are getting paid under the table and out the 
window and there is no record of it. One of the advantages of a 
universal social security or other kind of identifier involved in jobs 
would be in fact to improve tax collection and to improve some 
other things. 



248 

So I would not assume that the only possible purpose of the card 
is in fact to keep out people from Mexico. I think it is very possible 
that there are a lot of public purposes, legitimate public purposes, 
that could be accomplished. And I think that might help allay 
some of the fears if we had a card which in fact there were going to 
be spotchecks to see whether people running companies all over 
the country were in fact paying the withholding taxes and the 
social security taxes. 

If this were used also to kind of combat the erosion of voluntary 
tax payment, would that allay your fear somewhat, if it was an 
overall program of enforcement like that? 

Ms. Martinez. Not particularly. I guess I know about too many 
overall programs of enforcement that have failed. 

The other fear that I have, Mr. Frank, is that even if we did the 
best job we could, an almost nondiscriminatory job of it, the human 
demographic pressure for people to come here is so great that 
people will continue to come, and that in fact this labor market 
will go further underground. 

Mr. Frank. Let me ask you with regard to that. I share your 
objection to the guest worker program. It seems to me to say that 
people are good enough to work for us, but not good enough to live 
with us. Would you expand on your opposition to that? 

Ms. Martinez. My view is that if we need people to work here— 
and of course the economists are predicting that by the end of the 
eighties we will need workers— then I submit that people good 
enough to come and work here ought to be good enough to come 
here as real people, as you called them yesterday, with permanent 
resident alien status on a track toward citizenship. 

Mr. Frank. I will yield back for someone else to say something 
positive. 

Mr. Mazzoli. The gentleman's time has expired. 

The gentleman from California has just joined us. I do not know 
whether he would be prepared to ask questions. The gentleman is 
recognized for 5 minutes. 

Mr. Lungren. Now, I looked through some of this material 
before your testimony. So I would like to address one of my ques- 
tions to Ms. Martinez. With respect to the question that I gather 
we have been talking about a little bit ago, on the guest worker 
bill, I was intrigued by some of your testimony which suggested 
that employer sanctions would not stop, if that is the word you 
want to use, the migration of some Mexican nationals. 

Ms. Martinez. Or others. 

Mr. Lungren. Or others, right. But my guestworker bill would 
specifically deal with Mexico as a first step. But its likely employer 
sanctions would not stop them from coming to this country and 
seeking employment, albeit illegal employment. And that being the 
case, I am somewhat intrigued about why you would still not 
support a guest worker bill, if there are people that are going to be 
coming here under some sort of illegal status, unless you accept as 
an assumption that by their mere presence here they would auto- 
matically be granted illegal status. 

Ms. Martinez. I was responding a little bit to that pursuant to 
Mr. Frank's questions, and what I was suggesting was this: that if 
we need people here to work, that then we ought to accept them as 



249 

full-fledged people, as permanent resident aliens, members of our 
country, full-fledged members, and on a 5-year track toward citi- 
zenship. 

That is my belief, because otherwise my worry is that a guest— a 
Mexican American citizen fighting for first class citizen recogni- 
tion, continuing this fight is going to be labeled a guest worker. All 
United States-Mexican American citizens will be perceived as guest 
workers, and that is why I look at my alternatives. 

I am an attorney and I see that this country does have a perma- 
nent resident alien program. Then I submit that we should first 
exhaust that possibility before we look at anything as potentially 
pernicious as the guest worker program. 

If you look at the old bracero program that this would probably 
be patterned after, one would not take much comfort from that. If 
you look at the European experiment, I take less comfort from that 
guest worker program. 

Mr. LuNGREN. My question is this: Are you saying that somehow 
we can stop all the illegal influx, from whatever country, so that 
for a period of time we can see how the various programs work? Or 
are you saying that anyone who comes into this country, because 
they have an economic concern, ought to be allowed in and allowed 
to work? 

Ms. Martinez. I start from the premise that we have a right to 
regulate immigration. And I am saying if we need people to work 
then we should let them come in as permanent resident aliens, not 
as guestworkers or braceros. 

Mr. LuNGREN. If we establish a permanent resident alien pro- 
gram for them to come in and we establish some numbers and we 
have an employer sanction law, you also suggest that all of those 
things will not stop some illegal migration. My question is what do 
you do with the illegal migration? 

Ms. Martinez. I think I suggested earlier that there are other 
solutions in a broader framework, and those have to do with help- 
ing Mexico and other sending countries help themselves, help them 
vitalize their economies and create more opportunities there. We 
might be able to accomplish a lot through foreign trade policies. 
We do not have to look at the issue only as an immigration issue. 
In fact, I think we would be less than constructive if we did so. 

Mr. LuNGREN. I understand. But I am trying to sort some things 
out. I believe we ought to work with Mexico and other countries to 
assist in their economic development. But I think I would be some- 
what of a Pollyanna to suggest that somehow that is going to come 
to pass within the next 20 or 30 years. 

If you look at the average age, I believe in Mexico now it is 15 
years or less. If you look at the birth rate, it is continuing upward. 
And unless we are going to have the greatest miracle in the history 
of economic development in that country, I think we are still going 
to have numbers of them coming over. 

And I noticed in your presentation you cited Wayne Cornelius' 
study for the support of some of your positions. And after analyz- 
ing some of these facts, he has come out in support of a 
guestworker program. 

I just do not know. If we are going to continue to have some 
people here illegally, at least that tends to make me believe that 



83-514 0-81-17 



250 

that stigma is far worse with respect to the Hispanic community 
than the stigma of someone who is here legally under a 
guestworker status. 

It seems to me that if we ignore the fact that unless we have 
some sort of mechanism to bring numbers here to allow them to 
work for short periods of time — and there are large numbers who 
want to come here for short periods of time to work — that you are 
going to have a situation where they are here illegally, and that 
stigma to me is far greater than the stigma of a guestworker who 
is here legally. 

Many of the problems that we have right now step from the fact 
that the person's status is an illegal status. They are subject to 
unscrupulous employers. They are afraid to report crimes for fear 
of being identified as being here illegally. And that, it seems to me, 
attaches a stigma to them that they do not otherwise have. 

People will say, generally speaking— they will talk about illegals, 
but you ask them about individuals they have come into contact 
with who are not here legally, and they have the greatest things to 
say about these people. They separate the individual they know 
from the question of illegal status. 

And I would just like to see us work on that. I guess we are both 
arguing from the same premise and coming to a different conclu- 
sion. 

Mr. Mazzoli. I thank the gentleman very much. 

Mr. Kee, you have been fortunate. Maybe we ought to give you 2 
or 3 minutes, because no one has jumped on you. Do you have 
something you maybe want to jump on us about? 

Mr. Kee. I am very fortunate to have a hard-working staff and 
resource people behind me who had worked on this position paper, 
and they reminded me that there is one very important issue that 
is stated in our position paper that was not covered at all by the 
Select Commission. And that is the issue of the Filipino war veter- 
ans who served with the U.S. Armed Forces in World War II and 
because of certain deficiencies by the Immigration Service in proc- 
essing them they were precluded from becoming U.S. citizens. 

Now, Congressman Akaka has submitted to the Congress H.R. 
1001, and we would like to tell you that we wholeheartedly support 
this bill. 

Mr. Mazzou. Thank you very much. I will talk with him about 
that. 

And thank you, panelists, very, very much. We appreciate your 
attendance and your help. 

It is now our privilege to call forward the next group of panelists: 
Mr. David Carliner of the American Bar Association; Mr. Stanley 
Mailman of the Association of Immigration and Nationality Law- 
yers; Mr. John Shattuck, who has been with us many times, direc- 
tor of the American Civil Liberties Union; and Mr. Michael Semler 
of the Migrant Legal Action Program. 

Gentlemen, I understand that Mr. Shattuck has a time con- 
straint. Would it be acceptable if he proceeds? Would that be OK 
with all of you? 

Mr. Shattuck, please feel free to proceed. 



251 

STATEMENT OF JOHN SHATTUCK, LEGISLATIVE DIRECTOR, 
AMERICAN CIVIL LIBERTIES UNION 

Mr. Shattuck. I appreciate that very much, Mr. Chairman and 
my fellow panelists. 

The American Civil Liberties Union is very pleased to appear on 
this extraordinarily important issue. The Commission that has 
studied the issue of immigration and refugee policy has undertaken 
a monumental policy formulating task and it has reached a 
number of important conclusions concerning the control of immi- 
gration in the United States. It has also made several recommenda- 
tions which we believe pose dangers to the civil liberties of Ameri- 
cans. 

I would like to focus my remarks on the recommendations which 
we believe are most significant, first turning to several which we 
strongly and heartily endorse. 

We are pleased that the Commission has endorsed the Refugee 
Act of 1980, which defined refugees on the basis of persecution or 
fear of persecution, without regard to national origin. In keeping 
with the spirit of the act, the Commission recommends that the 
U.S. allocation of refugee numbers include both geographic consid- 
erations and specific refugee characteristics, and that in the course 
of allocation specific numbers be provided for political prisoners, 
victims of tortures, and persons under the threat of death, regard- 
less of their geographic origin. 

This is the cornerstone of our current enlightened refugee policy 
and it should be continued, as the Commission recommends. 

We are also pleased that the Commission has recommended to 
legalize certain categories of undocumented aliens now in the 
United States based on, again, nondiscriminatory criteria. 

We believe that the Commission's recommendations to create a 
new immigration court under article I of the Constitution is a 
valuable proposal to upgrade the quality of immigration justice. 
The Commission also recommended that the right to counsel and 
notification of that right be mandated at the time of any hearing, 
and we strongly endorse this recommendation as a major step 
toward eliminating the procedural and administrative chaos that 
characterizes all too many immigration cases today. 

I would like to turn now to several recommendations of the 
Commission about which the ACLU has some misgivings. In doing 
so, I certainly do not underestimate the complexity of the issue, 
nor do I mean to detract from the endorsements that we have just 
made of a substantial part of the Commission's work, or in other 
areas in which the Commission has made recommendations which 
we consider to be important, which we either endorse or do not 
oppose. 

We do, however, oppose the Commission's recommendations for 
the imposition of sanctions upon employers who hire undocument- 
ed workers and the creation of an accompanying system of more 
secure — and I stress that because it is very important to our testi- 
mony — more secure national identification for employment pur- 
poses, because of the serious dangers this would pose to civil rights 
and civil liberties inside the United States. 

With respect to employer sanctions, which I will not address at 
any length, we believe that the penalties imposed on employers 



252 

who hire persons illegally in the United States could exacerbate 
existing patterns of racial and ethnic discrimination in employ- 
ment by creating disincentives for employers to hire racial or 
ethnic minorities who might be illegal aliens. 

Before setting forth our objections to a new more secure form of 
worker identification, I would like to endorse one further aspect of 
the Commission's recommendations with respect to an enforcement 
scheme as an alternative to employer sanctions and more secure 
identification. And that is, of course, that the Commission has 
urged the increased enforcement of existing wage and working 
standards legislation and supports the necessary increases in 
budget, equipment, and personnel that will allow the Department 
of Labor's Employment Standards Administration to increase its 
efforts to monitor the workplace. 

This would impose on the employer the cost which the employer 
now may seek to avoid by violating the labor and working stand- 
ards laws and hiring illegal aliens who are willing to work in 
substandard conditions. This kind of stepped up enforcement may 
not be the total solution to the problem which the Commission has 
addressed, but it certainly could curtail the employment of illegal 
aliens without jeopardizing at the same time the rights of Ameri- 
cans. 

The additional enforcement program, endorsed by a bare one- 
vote majority of the Commission, depends on the development of a 
more secure identification system. Many who favor a new system 
of compulsory worker identification argue that it would be effective 
because the technology now exists for the creation of a tamper- 
proof social security card. 

The transformation of the social security card into a more secure 
means of identification as a prerequisite for employment would 
bring us, in our view, perilously close to the adoption of an internal 
passport in this country, which is not now known to Americans 
and which we think is anathema to their system of freedom. 

While it is argued that such a system would be no more than is 
presently required, in several key respects it would be fundamen- 
tally different. The social security number is now merely an identi- 
fier for counting and crediting contributions to the social security 
system. The employer does not view either the number or the card 
on which it is printed as having any further meaning. The number 
is often not given to the employer until after the person has been 
hired, nor is the card itself necessarily shown. And it is not a legal 
precondition to employment. 

Attempts to make the new identification system more secure 
would increase both its civil liberties and its economic costs. The 
Commission staff, of course, has studied extensively the costs of 
such a system and I will not repeat to you the figures, which are 
well known to those who have studied the Commission's report, the 
figures with respect to the implementation of that system. 

On the other hand, the development of such a system would 
provide the government with a potentially powerful weapon of 
intimidation. The utility of a work identity card would be its re- 
quired presentation upon official request. Creating a new card 
system 



253 

Mr. Mazzoli. Mr. Shattuck, I am sorry to bother you and I 
apologize for interrupting you and the other witnesses. But we did 
try to limit testimony to about 5 minutes in order that we could 
then have some questions. And we are getting toward the end. 

Mr. Shattuck. I am very nearly completed, Mr. Chairman. I just 
wanted to make a couple more points. 

Mr. Mazzoli. Thank you very much. 

Mr. Shattuck. It would be likely that a variety of government 
officials, not involved in the administration of social security pro- 
grams or employment programs, would demand inspection of that 
document and thus provide the potential for broad and discrimina- 
tory administrative searches. 

This is at the core of the basis for our objection. Needless to say, 
there are other forms of identification that exist now that would 
not involve the kind of card-carrying universal identification docu- 
ment, which is what we are most concerned about and which the 
Privacy Protection Study Commission was concerned about, which 
the Department of HEW Advisory Committee on Automated Data 
Systems was concerned about. 

But any system that involves a more secure form of work identi- 
fication, particularly if it involves a card which can be asked for 
and be the subject of an administrative search and a search of 
people who might happen to look foreign or be racial minorities, 
would in our view amount to a fundamental intrusion on the 
privacy of Americans and an invitation to discriminate. 

So in our view, what happens here when this more secure identi- 
fication system is proposed is that one problem is substituted for an 
even more serious problem, and for that reason we reluctantly 
oppose the more secure identification system. 

Mr. Mazzoli. Thank you, Mr. Shattuck. And again, I apologize 
for having to hurry you along. Your statement, of course, and the 
statements of all the gentlemen will be made a part of the record. 

We have to go on to the other panelists. If you have to leave 
before we get to the questions, we may be sending you some ques- 
tions in the mail. 

Mr. Shattuck. I appreciate that. 

[The prepared statement of Mr. Shattuck follows:] 



254 



Prepared Statement of John Shattuck 

The American Civil Liberties Union is grateful for this • 
opportunity to state our views on the recommendations of the 
Select Commission on Immigration and Refugee Policy. The ACLU is 
a national nonprofit organization of more than 200,000 members 
devoted to defending and enforcing the Bill of Rights to the 
Constitution. 

The Commission has undertaken a monumental policy-formulating 
task in an area of extraordinary importance, complexity and 
sensitivity. Immigration and refugee issues involve fundamental 
problems of human rights and liberties, questions of economics 
and foreign policy, and a host of other matters basic to our 
society. The formulation of immigration policy is fraught with 
competing concerns and requires many difficult choices. The 
Commission recognized these difficulties and nevertheless reached 
a number of important and sound conclusions concerning the control 
of immigration to the United States. It also made several recommenda- 
tions which we believe pose serious dangers to the civil liberties 
of Americans. I would like to focus my remarks on the recommendations 
which we believe are most significant, turning first to several 
of those which we endorse. 

Asylum 

The ACLU has long taken the position that "the right of 
asylum should be made available to persons who are in danger of 
persecution for reasons of political beliefs, religious persuasion 
or ethnic, national or racial origins." ACLU Policy # 323 on 
Immigration and Nationalization (attached) . By endorsing the 
Refugee Act of 1980, which defined refugees on the basis of 



255 



persecution or fear of persecution without regard to national 
origin, the Commission Report reflects the concern for human 
rights that should underlie a sound policy on asylum. In keeping 
with the spirit of the Refugee Act, the Commission recommends 
that "the U.S. allocation of refugee members include both geo- 
graphic considerations and specific refugee characteristics, . . . 
[and] that in the course of allocation, specific members be 
provided for political prisoners, victims of torture and persons 
under the threat of death, regardless of their geographic origin." 
Commission Report, p. 164. This is a cornerstone of our current, 
enlightened refugee policy, and it should be continued, as the 
Commission recommends. 

Legalization 

The ACLU is of the firm view that "where relief is afforded 
from deportation by reasons of hardship or other factors, such 
benefits should be granted without discrimination to persons from 
any country and to persons regardless of their occupation or 
method of admission to the U.S." ACLU Policy #329 on Deportation. 
The Commission's recommendation to legalize certain categories of 
undocumented aliens now in the United States, based on nondiscri- 
minatory criteria, is entirely consistent with this position, and 
we endorse it. 

Due Process 

The current structure of deportation and exclusion proceedings 
is complicated, confusing and burdensome. Forty immigration 
judges in the Immigration and Naturalization Service hear and 
decide approximately 56,000 deportation and 3,000 exclusion cases 
annually. The system is not working well, and it affords little 



256 



due process. The Commission's recommendation to create a new 
immigration court under Article I of the Constitution is a laud- 
able proposal to upgrade the quality of immigration justice. The 
proposed Article I court would include a trial division to hear 
and decide exclusion and deportation cases and an appellate 
division to correct hearing errors. The Commission also recommends 
"that the right to counsel and ratification of that right be 
mandated at the time of any hearing." We strongly endorse this 
recommendation as a major step toward eliminating the procedural 
and administrative chaos that characterizes too many immigration 
cases. 

Enforcement 

I would like to turn now to several recommendations of the 
Commission about which the ACLU has misgivings. In doing so I do 
not mean to downgrade the importance of the areas briefly described 
above — and other areas which time constraints do not permit me to 
treat here — where we endorse or do not oppose the Commission's 
recommendations , 

We oppose the Commission's recommendations for the imposition 
of sanctions upon employers who hire undocumented workers and the 
creation of an accompanying system of "more secure" national 
identification for employment purposes because of the serious 
dangers they pose to civil rights and civil liberties. With 
respect to employer sanctions, we believe that penalties imposed 
on employers who hire persons illegally in the United States 
would exacerbate existing patterns of racial and ethnic discrimina- 
tion in employment, by creating disincentives for employers to 



257 



hire racial or ethnic minorities who might be illegal aliens. 
ACLU Policy #327 on Employment of Undocumented Aliens. 

It is argued that the danger that employer sanctions will 
promote employment discrimination can be minimized by the develop- 
ment of an objective and accurate means of identifying illegal 
aliens. Unfortunately, neither the Commission nor any other 
responsible policy-formulating agency has been able to devise an 
objective and accurate means of identifying illegal aliens in the 
national work force without also seriously eroding the civil 
liberties of the entire work force. For reasons I will explain 
in detail, we find ourselves in substantial agreement with the 
seven commissioners who "find the creation of any new form of 
work identification unnecessary, costly and/or potentially harm- 
ful to civil liberties."-/ 

Before setting forth in detail our objections to a new, more 
secure form of work identification, I would like to endorse one 
of the Commission's other enforcement recommendations as an alter- 
native to employer sanctions and more secure identification. The 
Commission "urges the increased enforcement of existing wage and 
working standards legislation. . .[and] supports the necessary 
increases in budget, equipment and personnel that will allow the 
Department of Labor's Employment Standards Administration. . . to 
increase its efforts to monitor the workplace." Commission Report, 
II. B.2, at 70-71. 



17 Commission Report, II. B. 1, at 68. The Commission vote on the 
question, "Do you favor employer sanctions with some system of more 
secure identification?" was as follows: Yes-8; No-7; Pass-1. 
Id. at 61. 



258 



The Employment Standards Administration (ESA) is empowered 
by statute to restore back wages to persons who were paid below 
the federal minimum wage. Under the ESA program investigations 
are conducted against employers thought to be using undocumented 
workers. The objective of these investigations is to make low 
wage employers aware that the minimum wage law is being enforced, 
and that it is being enforced with particular diligence on those 
known, or reasonably believed to be employing illegal aliens. 
Since such enforcement will impose on the employer the costs which 
he seeks to avoid by violation of the labor and working standards 
laws, his incentive to hire undocumented workers will be signifi- 
cantly reduced. Such an enforcement system would be more cost- 
effective than implementing employer sanctions and a work identi- 
fication system, since it would be cheaper to use agencies already 
in place than to institute an entirely new and expensive system. 
More importantly, however, the increased enforcement of present 
wage and safety laws would not involve the widespread discriminatory 
impact and civil liberties erosion that appears to be inherent in 
an employer sanctions program coupled with a national work 
identification system. 

National Work Identification System 

The enforcement program endorsed by a bare one-vote majority 
of the Commission depends on the development of a "more secure 
identification system" for placing employers on notice about the 
illegality of hiring undocumented workers. In our view, such a 
system would impinge severely on the civil liberties of all workers 
and, in any event, would be very costly but not effective. 



259 



Our views on this important issue are similar to those of 
the U.S. Commission on Civil Rights, whose report. The Tarnished 
Golden Door: Civil Rights Issues in Immigration (1980) , at 
70-75, is similar to the following analysis. 

Those in favor of a new system of compulsory work identifica- 
tion argue that it would-be effective because the technology exists 
for the creation of a tamperproof social security card. 

The transformation of the Social Security card into a "more 
secure" means of identification and prerequisite for employment 
would bring us perilously close to the adoption of an internal 
passport. Despite disclaimers by its proponents of any such 
intention, a document of personal identification whose disclosure 
is required before employment can legally be obtained is in fact, 
if not in name, a domestic passport. To thwart attempts at 
forgery, the card would have to carry such unique personal identifiers 
as photograph, signature, and perhaps also fingerprints. It would 
also have to carry codings to show the bearer's legal authority to 
work. It would thus become an "employment passport." Employers 
would be forced to serve as agents of the government for the purpose 
of determining each applicant's identity and legal right to work. 

It is argued that a "more secure" identification system would 
be no more than is presently required, in that workers must now 
give their Social Security numbers to their employers. But the 
process would be fundamentally different. The number is now 
merely an identifier for counting and crediting contributions to 
the Social Security system. The employer does not view either the 



260 



number or the card on which it is printed as having any further 

meaning. The number is often not even given to the employer 

until after the person has been hired, nor is the card itself 

necessarily shown. Neither the possession of a Social Security 

number nor the disclosure of the number is a legal precondition 

to employment. 

Attempts to make the new identification system "more secure" 

would increase both its civil liberties and its economic costs. 

In 1973 the Department of Health, Education and Welfare concluded 

in a study evaluating the use of a standard universal identifier 

(SUI) that "the bureaucratic apparatus needed to assign and 

administer an SUI would represent another imposition of government 

2/ 
control on an already heavily burdened citizenry." The necessity 

of preparing a more secure identification for every lawful resident 
of the United States (or even every lawful member of the national 
work force), and of maintaining a central, computerized databank 
of information to verify the identity and status of every author- 
ized worker, would make the system both expensive and burdensome. 
A study by the Commission staff evaluating the expense of establish- 
ing even a relatively modest secure work identification system 
estimated that such a program, based conservatively on 15 million 
applications in the first year and 10 million annual additions and 
deletions in the central data bank files, would entail nearly 



17 U.S., Department of Health, Education and Welfare (now Health 
and Human Services), Secretary's Advisory Committee on an Automated 
Personal Data Systems, Records, Computers, and the Rights of Citizens 
(July 1973) , p. Ill (hereinafter HEW Report ) . 



261 



$100 million "in start-up costs" and $180 to $230 million 

annually for operating costs. 

The burdens created by a secure work identification system 

are not limited to the creation of information files on individual 

Americans or the types and amount of data collected by the federal 

government. There are also problems with respect to who has access 

to the data and how it is used. Although the institution of a 

compulsory national identity system raises serious questions as to 

the potential access of employers to information which would be 

contained in an individual's file, the more obvious and greater 

concern would be the improper use of information collected by the 

government agency. As Commissioner Holtzman pointed out in her 

dissent from the Commission's recommendation of a "more secure" 

identification card: 

Regardless of the legislative intent, I do not 
believe it is reasonable to assume that the use 
of such a card could be limited to the place of 
employment. Like a driver's license or a social 
security card, individuals would soon find a 
national identity card would be utilized for 
purposes unrelated to the original purpose for 
which it was created, by organizations and agencies 
with no connection to the workplace. 

Commission Report, Appendix B, at p. 343. 

This would not be a new problem for government data gathering. 

In enacting the Privacy Act of 1974, Congress was reacting to the 

illegal, unwise, overbroad investigation and record 
surveillance of law-abiding citizens produced in 
recent years from actions of some over-zealous 
investigators, and the curiousity of some government 
administrators, or the wrongful disclosure and use, 
in some cases, of personal files held by Federal 
agencies. 3/ 



3/ S. Rep. No. 93-1183, 93d Cong., 2d Sess. 1 (1974). 



262 



The heightened concern of Americans over governmental intrusions 
into the right to privacy of individuals is reflected in decisions 

of the Supreme Court over the last decade. The Court has 

1/ 
recognized that a right to privacy does exist. Although "[tlhe 

Constitution does not explicity mention any right of privacy," 

the Court has stated that it flows from the zones of privacy 

created by many constitutional guarantees. In an earlier era, 

Justice Louis Brandeis referred to this right as "the right to 

be left alone — the most comprehensive of rights and the right most 

5/ 
valued by civilized men" and stated: 

Experience should teach us to be most on our guard 
to protect liberty when the Government's purposes 
are beneficent. Men born to freedom are naturally 
alert to repel invasion of their liberty by evil- 
minded rulers. The greatest dangers to liberty 
lurk in insidious encroachment by men of zeal, well- 
meaning but without understanding. 6/ 

The development and implementation of a compulsory national 

work identification system would provide law enforcement officials 

and other governmental officials with a potentially "powerful 

weapon of intimidation" which could result from "the mere threat 

y 

of official confiscation." The utility of a standard universal 
identifier or a compulsory national identity card would be in its 
presentation upon official request. Creating a compulsory national 

47 Carey v. Population Services Intl. 431 U.S. 678, 684 (1977); 
Roe V. Wade, 410 U.S. 113, 152 (1973); Griswold v. Connecticut, 
381 U.S. 479, 484-85 (1965). 

5/ Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., 
dissenting) . 

6/ Id. at 479. 

7/ HEW Report , p. 111. 



263 



10 



identity card system or elevating the social security card to 
the status of a national identifier would make it all the more 
likely that a variety of governmental officials (not involved in 
the administration of social security programs or employment 
program) would demand inspection of that document and thus provide 
the potential for violations of individual rights. 

In enforcing the sanctions against employers who hire 
undocumented workers, immigration officials would regard the 
existence of a work identification system as an invitation to 
conduct dragnet searches of places frequented by foreigners or 
those who look foreign. The resulting invasion of privacy and 
discriminatory focus on those who are "foreign- looking" would be 
severe. See attached memorandum for relevant legal precedents. 

These dangers have been repeatedly noted in recent official 

studies. In its 1977 report, the Privacy Protection Study 

Commission, established by the Congress, treated these fundamental 

issues at length. In a chapter on the social security number, the 

Commission concluded: 

That the Federal Government not consider taking any 
action that would foster the development of a 
standard, universal label for individuals, or a 
central population register, until such time as 
significant steps have been taken to implement safe- 
guards and policies regarding permissible uses and 
disclosures of records about individuals in the 
spirit of those recommended by the [Privacy Protec- 
tion Study) Commission and those safeguards and 
policies have been demonstrated to be effective. 8/ 



8/ Privacy Protection Study Commission, Personal Privacy in an 
Information Society (1977) , p. 617. 



264 



11 



other recent studies have reached similar conclusions. The 
Federal Advisory Committee on False Identification opposed the 
development of a national identity card in its 1976 report. The 

1973 HEW study cited above also opposed the use of the social 

i/ 
security card as a standard universal identifier. In that study, 

the Secretary's Advisory Committee on Automated Personal Data 

Systems noted: 

The national population register that an SUI implies 
could serve as the skeleton for a national dossier 
system to maintain information on every citizen [and 
resident] from cradle to grave. 10 / 

The HEW study further stated that this type of information gathering 

is at odds with American traditions: 

A permanent SUI issued at birth could create an incentive 
for institutions to pool or link their records, thereby 
making it possible to bring a lifetime of information to 
bear on any decision about a given individual. American 
culture is rich in the belief that an individual can pull 
up stakes and make a fresh start, but a universally 
identified (person] might become a prisoner of his 
recorded past. 11 / 

The great potential for infringement of privacy rights and the 

impact this could have on the infringement of other rights strongly 

suggests that the proposal for "more secure" work "identifiers", if 

adopted, would merely exchange one problem for a different and more 

serious problem. 



17 HEW Report, p. 112. 

10 / Ibid., p. 111. Similar concerns were expressed by the Privacy 
Protection Study Commission on p. 618 of its report. 

11/ HEW Report, pp. 111-12. 



265 



12 



In introducing the bill which eventually became the Privacy 
Act of 1974, former Senator Sam J. Ervin, Jr., offered an eloquent 
statement about the dangers of proliferating systems of govern- 
ment collection of personal data. 

there must be limits upon what the Government can know 
about each of its citizens. Each time we give up a 
bit of information about ourselves to the Government, 
we give up some of our freedom. For the more the 
Government or any institution knows about us, the more 
power it has over us. When the Government knows all 
of our secrets, we stand naked before official power. 
Stripped of our privacy, we lose our rights and 
privileges. The Bill of Rights then becomes just so 
many words . 12 / 

In conclusion, we oppose the employer sanctions model of 
enforcement proposed by the Commission because it would be 
impossible to administer in a non-discriminatory manner, even if 
a more secure form of work identification could be devised. 
Whether or not such a system is based on a national identity 
card, potential problems of discrimination would remain. As 
Commissioner Holtzman succinctly stated, "clearly, employers 
wishing to avoid additional paperwork or possible disruption of 
their business through civil or criminal penalties would simply 
refuse to hire anyone who conceivably might be an undocumented 
alien. Given the meager resources currently allocated to the 
enforcement of equal opportunity statutes, I do not believe the 
threat of a discrimination action is sufficient to deter such 
conduct." Commission Report, Appendix B, at p. 344. We agree. 
A system which would encourage employment discrimination while 
jeopardizing the civil liberties of the entire work force is not 
worth the substantial cost of putting it into place. 

Thank you for this opportunity to state our views. 



127 120 Cong. Rec. 12646 (1974) (remarks of Sen. Ervin) 



83-514 0-81-18 



266 
Immigration and Naturalization 



Policy #323 



Admission of Immigrants 

Whatever method Congress may choose to select immigrants for admission 
to the United States, ancestry, color, nationality (whether defined in terms of a 
nation, colony or dependency) sex. religion or race should not be the basis for 
exclusion. The ACLU favors elimination from the existing immigration laws of 
all vestigial remains of the now-repealed national origins quota system, including 
the maintenance of subquotas for colonies and dependent areas of foreign states. 
Aliens should not be barred from admission to the United States as 
permanent residents upon grounds relating to their beliefs or advocacy of any 
ideas, including political doctrine. 

Aliens should not be barred from admission to the United States as 
permanent residents upon grounds which are vague or subject to the arbitrary 
exercise of discretion. 

Aliens should not be barred from admission to the United States as 
permanent residents upon grounds not reasonably related to any proper 
governmental concern. 

The historic tradition of asylum should be established as a settled tenet of 
American immigration policy. The right of asylum should be made avaUable to 
persons who are in danger of persecution for reasons of political beliefs, religious 
persuasion or ethnic, national or racial origins. 

Any alien outside the United Sutes who is denied a visa, or refused 
admission to the United States as an immigrant should have the right to an 
adjudicatory proceeding, which shall include the right of representation, to 
present evidence, to examine and to object to evidence against the applicant, a 
written record of the proceedings, and the decision by the adjudicating officer 
based upon the evidence in the record. 

Any alien who is denied a visa by the adjudicating officer in an administra- 
tive proceeding shall be entitled to the same rights of judicial review as is 
enjoyed by aliens within the United States. (Board Minutes, June 18-19. 1977.) 

Policy #324 

Admission of Non-Immigrants 

Aliens who are otherwise eligible to obtain visitors* visas should not be 
barred from admission to the United States because of their ancestry, color, 
nationality, sex. religion .^race. or sexual or affectional preference, upon grounds 
relating to their beliefs or adv<x:acy of any ideas, including political doctrine, or 
upon grounds which are vague or which are subject to the arbitrary exercise of 



' For m^lJnc«. ACLU policy on Homosexuality make» the foUowing specific reference to 

aliens'. • j • i r 

"Just as governmenul divrrimination by race, alienage, religion or sex is a denial ot 

equal protection, so. too. is governmental discrimination on the basis of sexual or 

affectional preference Homosexuality per se implies no disabUity that would justify such 

discrimination. The ACLU opposes the exclusion, deportation and refusal to naturalue 

homosexual aliens." 

'ACLU policy on ACLU's Role in International Civil Liberties Matters includes the 

foUowing support of the right of political asylum: 

"The ACLU will aid persons from foreign lands to secure political asylum in the 

United Slates when these persons seek refuge from persecution for their political, religious 

Of other beliefs or associations." 

This passage is incorporated into our review of ACLU immigration policies because of 

the interrelationship of immigration and international civil liberties issues. 



267 



discretion. Nor should the grant or maintenance of non -immigrant sUtus by 
students, business visitors, visitors for pleasure or any other non-immigrants be 
denied by reason of the exercise of the constitutional right of free speech or 
association or membership in any party, or conditioned upon the limitation of 
the right to travel within the United States. 

Aliens who have been denied visas to enter the United States should have 
the right to have the consular decision reviewed in an administrative proceeding 
and be entitled to the same right of judicial review which is afforded to other 
persons who are aggrieved by governmental action. [Board Minutes, September 
24-25, 1977.J 



Policy #325 

Naluralization 

The naturalization envisioned by the Constitution is one which, when 
achieved for the naturalized citizen, places that citizen upon an equal footing 
with the native born citizen of the United States. As Congress would have no 
power to impose conditions on the retention of citizenship by naturalized 
citizens, the conditions which it would impose on the grant of citizenship should 
be reasonably limited to those requirements which indicate an identity with the 
people of the United States. 

The ACLU opposes any conditions upon the grant of citizenship which 
would bar persons because of their political beliefs, other than an allegiance to a 
foreign state, or a standard of conduct which would not debar a natural citizen 
of the United States from the exercise of his rights of citizenship. Such 
standards, where applicable, should be applied through a process of judicial 
inclusion and exclusion, permitting naturalization to be determined through an 
adjudicatory method reflecting prevailing standards of conduct rather than by 
rigid legislative definition. [Board Minutes,. September 24-25, i977.| 



PoUcy #326 

Loss of Citizenship 

An American citizen has the right to expatriate himself or herself volun- 
tarily and to achieve the status of an alien in respect to the United States 
government. [Board Minutes, August 19. 1968.) 

The ACLU believes that Congress should be without power to deprive a 
native-bom or naturalized citizen of the United States of citizenship in the 
absence of an international and voluntary renunciation of allegiance except in 
those cases in which a naturalized citizen has acquired citizenship by a willful 
misrepresentation or concealment of a fact material to his eligibility to 
citizenship. Any proceeding to denaturalize a naturalized citizen upon such 
grounds should be subject to a statute of limitations of 10 years. 

Where Congress has conferred citizenship at birth to persons born outside of 
the United States of any parent who is a citizen of the United States, such 
"statutory citizens at birth" should be afforded the same right to citizenship 
which is afforded to native-born and to naturalized citizens. Their citizenship 
should not be divested except upon their intentional and voluntary renunciation 
of allegiance. [Board Minutes, September 24-25, 1977.) 



268 

Aliens 

Policy #327 

Employment of Undocumented Aliens 

The ACLU remains opposed to legislation which penalizes employers for 
hiring aliens unlawfully in the United States. We believe that such legislation 
would exacerbate existing patterns of racial and ethnic discrimination in 
employment, by creating greater risks for employers hiring applicants whom 
they believe to be aliens. (See also policy on Property Ownership.) 

The ACLU also opposes the uk of Social Security cards and other 
govemmentally-issued documents as a condition of employment. Such a prac- 
tice, in effect, creates an "employment passport," which results in a universal 
identifier of all persons in the United States. (Board Minutes, June IS-19, 
1977.) 



PoUcy #328 

Detention and Registration 

The ACLU opposes the enactment of alien registration laws, whidi treat the 
alien population as a separate and quasi-criminal element of society and create 
an easy avenue for surveillance of those who hold unpopular beliefs. [Board 
Minutes, July 24. 1939; Minutes of Executive Committee, January 11, 1926; 
Weekly Bulletin, March 31, 1926.) 

The Union did not take a stand against the principle of detention of enemy 
aliens in this country during World War II, although on numerous occasions it 
did protest specific injustices in the administration of the program. In 1942, and 
twice in 1944, however, the ACLU challenged judicially the restriction and 
detention by military authorities of civilian citizens without any regard for the 
requirements of due process (pressing of specific charges, proper hearing, etc.) 
and without any proof of justification by reasons of national security in 
wartime. The subjects uf these detention measures were the victims of blatant 
racial discrimination because they were not enemy aliens at all. but native-bom 
Americans of Japanese ancestry, and thus were denied equal protection of the 
law in being singled out for evacuation and resettlement for no apparent reason 
other than their race. [Annual Reports and Board Minutes, 1941-1944; ACLU 
amicus briefs. Hirabayashi vs. USA. 1942, Korematsu vs. U.S.. 1944. EnJct vs. 
Eisenhower. I944.| 



Policy #329 

Deportation 

(a) Deportation from the United States is a punishment which cannot be 
constitutionally imposed upon its citizens. The ACLU believes that it is at all 
times a denial of due process to inflict upon a lawful permanent resident alien 
punishment which cannot be imposed upon a citizen of the United States who 
has engaged in the identical conduct, and it may, in particular circumstances, be 
cruel and unusual punishment. For persons who have become absorbed into the 
American community, living and working in the United States as full members 



269 



of iU society deportation cannot be and should not be regarded as the exercise 

of any "foreign policy" of the United States government. 

«•• 

(b) Although aliens who have acquired their status as permanent residents 
by fraud or otherwise aiegally may, without offending due process, be subject to 
deportation, the ACLU favors in this area, as in other offenses against the 
government, a statute of limitations barring deportation for any fraudulent or 
illegal entry to the United States which has occurred. Nor does the ACLU 
believe that deportation should be inflicted upon those under the age of eighteen 
who may have been admitted to the United States for permanent residence as 
the result of an illegal or fraudulent act. [Board Minutes, June 18-19. 1977.) 

• •• 

(c) Where relief is afforded from deportation by reasons of hardship or 
other factors, such beneHts should be granted without discrimination to persons 
from any country and to persons regardless of their occupation or method of 
admission to the United States. Neither should any person who has been granted 
relief from deportation be debarred from any rights or benefits which are 
otherwise avaUable to persons in the U.S. under the Immigration law and other 
statutes and the Constitution of the U.S. Nor should any person who is 
deportable from the United States be deported to a country where he has had no 
prior residence or to a country where he will be subject to persecution. [Board 
Minutes, September 24-25. 1977.) 

Statement of John Shattuck, Legislative Director, American Civil Liberties 

Union 

constitutional implications of a work authorization card 

This memorandum addresses the legal implications of a work authorization card. 
Such a document would invite serious invasion of privacy as well as discriminatory 
use. 

The Supreme Court's decisions in U.S. v. Robinson, 414 U.S. 218 (1973) and its 
companion case, Gustafson v. Florida, 414 U.S. 260 (1973) articulate the threat to 
privacy of a work authorization card. In Robinson, an officer arrested the defendant 
for operating a car with a revoked driver's license; Gustafson was driving without a 
license. As a result of these "lawful custodial arrests" the Supreme Court held that 
a "full search of the person is not only an exception to the warrant requirement of 
the Fourth Amendment, but is also a 'reasonable' search under that Amendment." 
414 U.S. at 235. The police need not articulate probable cause for a search in such a 
situation. In other words, law enforcement officials have the right to seriously 
intrude upon an individual's privacy if that person lacks the documents which show 
that he or she may engage in certain regulated activities. 

Gustafson in particular, provides a disturbing analogy to the possible use of the 
work authorization card. There, the arresting officer said that he first followed 
Gustafson because his car was weaving across the road. However, the policeman 
neither administered a sobriety test nor filed charges of drunken driving. Instead, 
the officer arrested Gustafson because he could not produce his driver's license. In 
his consequent search of Gustafson, the officer found a cigarette box containing 
marijuana. It is interesting to note that the Supreme Court upheld this search as 
pursuant to a lawful arrest even though no police regulations required the officer to 
take Gustafson into custody; there were no police department policies requiring full 
body searches upon arrest in the field; the officer had no fear for his well-being; he 
had no previous experiences with Gustafson; finally, the charge of driving without 
possession of an operator's license was later dropped when Gustafson produced a 



270 

valid license. Nevertheless, the seemingly minor and peaceful offense of not carry- 
ing his driver's license subjected Gustafson to a severe violation of his right to 
privacy. 

Obviously, Gustafson triggers concern about the use of a work authorization card. 
In order to enforce the requirement that each American citizen and documented 
alien carry a card, legislators could easily impose criminal penalties for non-posses- 
sion at the work-place. The resulting ' lawful" arrest would open the door to a 
thorough search. 

Fortunately, the Supreme Court has placed limits on policemen's discretion in 
stopping or seizing citizens. In Delaware v. Prouse, 440 U.S. 648 (1979), the Court 
struck down the legality of random spot checks of drivers' licenses and car registra- 
tions. The officer in Prouse had not observed any traffic or equipment violations or 
any suspicious activity by the car's occupants. Further, he was not acting pursuant 
to any standards, guidelines or procedures pertaining to document spot checks, 
promulgated either by his department or the State Attorney General. Given the 
circumstances. Justice White wrote: 

"We agree that the States have a vital interest in ensuring that only those 
qualified to do so are permitted to operate motor vehicles (but) . . . given the 
alternative mechanisms available, both those in use and those that might be adopt- 
ed, we are unconvinced that the incremental contribution to highway safety of the 
random spot check justifies the practice under the Fourth Amendment." 440 U.S. at 
659. 

Beyond such pragmatic concerns of effectiveness, however, Justice White pointed 
out that "an individual operating or travelling in an automobile does not lose all 
reasonable expectation of privacy simply because the automobile and its use are 
subject to government regulation. Automobile travel is a basic, pervasive and often 
necessary mode of transportation. . ." id. at 662. Clearly, the Court perceived the 
right to some degree of privacy in the regulated operation of an automobile, partly 
because cars are often necessary and widely used. 

But Prouse is a cautious decision. The Court drew a crucial distinction between 
random spot checks and stops at the border or checkpoints within the United States 
where "all are subjected to a show of the police power of the community." id. at 657. 
In his dissent, Justice Rehnquist accurately pinpointed this disturbing and broad 
exception to the Fourth Amendment protection of privacy: 

"Because motorists, apparently like sheep, are much less likely to be 'frightened' 
or 'annoyed' when stopped en masse, a highway patrolman needs neither probable 
cause nor articulable suspicion to stop all motorists on a particular thoroughfare, 
but he cannot without articulable suspicion stop less than all motorists. The Court 
thus elevates the adage 'misery loves company' to a novel role in Fourth Amend- 
ment jurisprudence." id. at 664. 

Thus, Prouse carries a variety of implications for the work authorization card. 
The card will actually serve as a sort of license, authorizing persons to hold jobs in 
the United States. In order to insure that American citizens or documented aliens 
fill available American jobs, law enforcement officers may ask an individual to 
produce his card. Of course, the work-place, like the automobile, harbors a certain 
right to privacy. But Prouse indicates that society's interest in regulating employ- 
ment and the en masse nature of an inspection could abridge that right. An 
inspection of all workers' cards in a factory, for example, bears a striking resem- 
blance to the procedure employed at a Border Patrol checkpoint. And the Supreme 
Court sustained the constitutionality of the Border Patrol's checkpoint operations in 
U.S. V. Martinez-Fuerte, 428 U.S. 543 (1976). 

The work authorization card also threatens to become a national identity card. If 
Congress chose to regulate mere presence within the United States' borders by 
requiring American citizens and documented aliens to carry the card, it is difficult 
to imagine where an individual could expect a right to privacy. Prouse, again, 
provides little protection. 

A more recent Supreme Court case. Brown v. Texas, 443 U.S. 47 (1979), helps 
explain the Court's reasoning in Prouse. Police approached a man walking through 
a high drug problem area and asked him to identify himself. They were unable to 
later articulate why thev thought this man looked suspicious. Brown refused to 
comply with the officers' request, a criminal act under a Texas statute. The Su- 
preme Court ruled Brown's subsequent detention unconstitutional. In doing so. 
Chief Justice Burger first defined a detention for the purpose of requiring identifica- 
tion as a seizure of the individual's person. Burger observed that although the 
seizure "involve(d) only a brief detention short of traditional arrest, Davis v. Missis- 
sippi. 394 U.S. 721 (1969); Terr,' v, Ohio. 392 U.S. 1, 16-19 (1968), '(w)henever a police 
officer accosts an individual and restrains his freedom to walk away, he has "seized" 
that person' [Id. at 16] and the Fourth Amendment requires that the seizure be 



271 

'reasonable' U.S. v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)." id. at . This defini- 
tion of "seizure" has since provoked some controversy. In U.S. v. Mendenhall, 

U.S. , 64 L. Ed. 2d. 497 (1980), the Court upheld the constitutionality of federal 

agents' stop and search of a woman in the concourse of an airport. Justices Powell 
and Rehnquist insisted that the stop and the request for identification was not a 
seizure because "nothing in the record suggests that the respondent had any objec- 
tive reason to believe that she was not free to end the conversation in the concourse 
and proceed on her way. ' 64 L. Ed. 2d. at 510. The other Justices either rejected this 
interpretation or assumed that the stop was a seizure, subject to the test of reason- 
ableness under the Fourth Amendment. 

In Brown, the Chief Justice outlined a three-pronged test for the constitutionality 
of such seizures. It involved a "weighing of the gravity of the public concerns served 
by the seizure, the degree to which the seizure advances the public interest, and the 

severity of the interference with individual liberty." id. at . As a result of these 

three concerns, the courts generally require that a seizure must be based on either 
specific, objective facts which trigger society's legitimate interests or a plan which 
details police conduct. The Court found no facts and no plan supporting the deten- 
tion of the suspect in Brown. Thus lacking a previous "lawful" arrest, totally 
lacking any articulated reasons for an intrusion and facing a random spot check, 
the Court chose to reject the legitimacy of the demand for identification in both 

Prouse and Brown. . • . ^ 

But if law enforcement officers are looking for people who are not authorized to 
work, what objective criteria can they cite? At this point, the potential for discrimi- 
nation enters. , • •.^- i x c 

The request for documentation cannot be considered apart from the initial stop ot 
an individual. Brown, Prouse and Gustafson suggest that the validity of the identifi- 
cation check turns on the lawfulness of the stop or seizure. A federal court of 
appeals in U.S. v. Lincoln, 494 F.2d 833, 838 (9th Cir., 1974), insisted that "such [a 
request] is necessarily a part of any law enforcement agency's procedure." And 
another court stated in Dell v. State of Louisiana, 468 F.2d 324, 326 (5th Cir., 1972), 
cert, denied, 411 U.S. 938 (1973), that "the general rule is that a police officer may 
stop a vehicle and request the production of a driver's license with somewhat less 
than probable cause as a requisite." , _r i 

The Supreme Court fashioned a line between a lawful and an unlaw^ful stop based 
on "reasonable suspicion" in U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975). More 
importantly, the Court dealt with appearance as a contributing objective fact. A 
roving patrol of the Border Patrol stopped a car near the Mexican border and 
questioned the occupants about their citizenship and immigration status. The offi- 
cers' sole stated ground for suspicion was that the people in the car appeared to be 
of Mexican ancestry. The government claimed only the authority to question the 
occupants about their citizenship and immigration status as a result of their fea- 
tures. Writing for the majority. Justice Powell rejected that simplistic test but did 
allow officers some leeway: 

"Because of the importance of the governmental interest at stake, the minimal 
intrusion of a brief stop, and the absence of practical alternatives for policing the 
border, we hold that when an officer's observations lead him reasonably to suspect 
that a particular vehicle may contain aliens who are illegally in the country, he 
may stop the car briefly and investigate the circumstances that provoke suspicion." 
id. at 881. . . 

Permitted factors leading to a stop for identification included: characteristics oi 
the area, proximity to the border, usual traffic patterns, the driver's behavior, 
attempts to evade officers, erratic driving, the type of vehicle, an unusually heavy 
load in the car, the number of passengers and a Mexican mode of dress or hairstyle. 
In addition, Mexican ancestry could be used as one of several clues to illegal 
alienage. 

Similarly, the Fifth Circuit found that "the single factor that the occupants of a 
car appear to be of Mexican ancestry does not furnish reasonable grounds to stop 
the car." U.S. v. Del Bosque, 523 F.2d 1251, (5th Circ, 1975). Indeed, that Court has 
created a two-part test for stops. Either the vehicle must have been observed 
crossing the border (the "border nexus" test) or the officers must have reason to 
suspect illegal activity involving a violation of customs or immigration law (the 
"reasonable suspicion" test) see U.S. v. Newell, 506 F.2d 401 (5th Circ, 1975), U.S. v. 
Diemler, 498 F.2d 1070 (5th Circ, 1974), U.S. v. Speed, 497 F.2d 546 (5th Circ, 1974). 
Nevertheless, brown skin can serve as one element for suspicion. 

In Delaware v. Prouse, 440 U.S. at 659 Justice White claimed that "drivers 
without licenses are presumably the less safe drivers whose propensities may well 
exhibit themselves. Absent some empirical data to the contrary, it must be assumed 
that finding an unlicensed driver among those who commit traffic violations is a 



272 

much more likely event than finding an unlicensed driver by choosing randomly 
from the whole universe of drivers." But what similar manifestations will surface 
for police officers or INS agents as they search for workers without work authoriza- 
tion cards? Appearance, which has been de-emphasized by the courts, could play a 
key role in the incidence of requests for identification. Much will depend on the 
weight given "the gravity of the public concern [about illegal aliens employed in the 
U.S.] . . ., the degree to which the seizure advances the public interest [in deterring 
such employment] and the severity of the interference with [American citizens' and 
documented aliens'] individual liberty." Brown v. Texas, 443 U.S. 47, (1979). How 
"reasonable" could it become to discriminate against people of Mexican ancestry? 
Even though the work authorization card would be issued in a non-discriminatory 
manner and would reputedly reduce discrimination in hiring, the card's likely 
eventual function as the license proving an individual's right to work invites dis- 
crimination. Certainly, officers could point to the type of job, the season, a worker's 
frightened behavior. But skin color would probably act as the catalyst to these 
supplementary observations. 

Conclusion 

This memorandum has been confined to the implications of a document which 
aims only to regulate employment. Even within that limited context, serious threats 
to civil liberties arise. As demonstrated earlier, the card could easily be used to 
legitimize searches and seizures. It could also occasion harassment of racial minor- 
ities. For these reasons it should not be adopted. 

Mr. IMazzoli. Mr. Carliner? 

STATEMENT OF DAVID CARLINER, CHAIRMAN, COMMITTEE ON 
IMMIGRATION AND NATIONALITY, SECTION OF ADMINISTRA- 
TIVE LAW, AMERICAN BAR ASSOCIATION 

Mr. Carliner. Thank you very much, Mr. Chairman. 

My name is David Carliner. I appear here on behalf of the 
American Bar Association at the request of our president, Mr. 
William Reece Smith, who has written me that he has become 
aware that immigration policy reform is a matter of paramount 
national concern. Mr. Smith recently took part in a conference on 
immigration policy sponsored by the Johnson Foundation in 
Racine, Wis., where indeed some of you may have participated. 

The American Bar Association has some 275,000 members. I 
would not say that all of them are intimately familiar with immi- 
gration matters, but we have almost as many committees within 
the ABA looking into these issues as Congress does. 

I am the chairman of the administrative law section's committee 
on immigration and nationality. We have an international law 
section, a criminal justice section, and other sections dealing with 
labor relations law, and the administration of courts and justice. 

The policies which I will speak to today, and which I wish to 
emphasize are the policies which have been endorsed by the Ameri- 
can Bar Association itself. Like the American people, the ABA has 
some internal differences on some of the issues which I will discuss. 
However, all of my testimony reflects policy positions adopted by 
our House of Delegates. 

The American Bar Association has followed the course of immi- 
gration legislation for at least the last 30 years. During the course 
of that period, beginning with the enactment of the 1952 statute, 
the ABA has from time to time suggested various revisions and 
reforms in the operation of the immigration system. Our focus, 
being lawyers, is primarily on the administration of justice and not 
on the larger policy questions, as to which, although we may have 
opinions, we have no more competence than other American citi- 
zens to give views. 



273 

As to administrative issues, I will address myself first to one of 
the issues dealt with by the Select Commission concerning the 
Federal agency structure. The Select Commission found that there 
is no need, at this time at least, to have a unification of the 
administrative agencies. As the committees are aware, of course, 
the State Department, the Bureau of Consular Services, and the 
Department of Justice, the Immigration and Naturalization Serv- 
ice, as well a the Department of Labor, the Department of Health 
and Human Services, and other agencies, all have a hand in some 
piece of the immigration law policy formation and enforcement. 

The American Bar Association feels rather strongly that the 
time has come to have one agency in the United States administer- 
ing the immigration laws, and that there should be certainly a 
merger of the functions of the visa offices with the functions of the 
Immigration and Naturalization Service. We are not committed as 
to which agency should house that function. Indeed, it could be an 
independent agency. It could be within either agency, subject to the 
discretion of Congress. But the history shows that the work is 
duplicative, that the issuance of a visa involves many functions 
which are handled by the Immigration and Naturalization Service 
and once the issuance of the visa is accomplished, it is examined 
once again by the Immigration and Naturalization Service. Almost 
every phase of handling an individual's case has these two separate 
agencies making determinations. We believe that there is just no 
justification at all for maintaining a dual structure. 

Approximately 20 years ago, there was a National Commission 
on Security. One of our former presidents, Edward L. Wright, who 
served on that Commission urged that there be a consolidation of 
these two agencies. So we commend this particular principle to the 
committee for its consideration. 

One of the major functions within the immigration system, of 
course, is providing aliens, and not only aliens but citizens who 
have cases pending before the Immigration and Naturalization 
Service, an administrative procedure which is one of fair process. 
We don't suggest at all that there has been a lack of fairness in the 
process on the whole; the Immigration and Nationality Act pro- 
vides for a substitute to the Administrative Procedure Act. 

We do believe, though, that the immigration judges who are now 
subordinate in many ways to district directors of the Immigration 
and Naturalization Service, who are subject to permission to travel, 
to appropriations and other functions, should be made independent 
judges in the same manner that the administrative law judges are 
under the Administrative Procedures Act. This is something which 
the Commission in its report has also favored. 

We also favor establishing the Board of Immigration Appeals as 
a statutory board. That board was first established in the Depart- 
ment of Justice in 1940 by regulation as a creation of the Attorney 
General. Its members are appointed by the Attorney General with 
no terms. They serve at his sufferance. Although I assume there is 
no likelihood the board will be abolished, it is nevertheless a fact 
that it exists only under regulation; we believe that the Board 
should be firmly established by statute. 

We also believe that there should be a Board of Visa Appeals. 
This is more controversial, because some people believe that a 



274 

Board of Visa Appeals would encourage aliens all over the United 
States to go into the U.S. courts to establish what they perceive to 
be their constitutional and statutory rights. This doesn't necessar- 
ily follow. The board could be established to review decisions, with 
limited access thereafter to the U.S. courts. There is no one in this 
country who serves in the Government who isn't subject to review 
by someone, except American consular officials. Their decisions on 
the issuance of visas are final and not subject to review even by the 
Secretary of State. We think this is administratively and procedur- 
ally a deficient mechanism which could be rectified by the estab- 
lishment of a Board of Visa Appeals. 

There are a number of other proposals enumerated in my state- 
ment including, for instance, support for employer sanctions. How- 
ever, because my time has expired, I ask lease to have my full 
statement included in the record. 

Mr. Mazzoli. Without objection at all, Mr. Carliner, your full 
statement will be made a part of the record and we appreciate it 
very much. 

[The prepared statement of Mr. Carliner follows:] 



275 



Prepared Statement of David Carliner 

Mr. Chairman, and members of both subcommittees: 

My name is David Carliner, and I am in the private practice of law here 
in Washington. I am pleased to appear today on behalf of the American Bar 
Association, in whose Section of Administrative Law I have the honor of 
chairing the Committee on Immigration and Nationality. 

The American Bar Association welcomes the opportunity to appear before 
the Senate Subcommittee on Immigration and Refugee Policy and the House 
Subcommittee on Immigration, Refugees and International Law to review the 
report and recommendations of the Select Commission on Immigration and 
Refugee Policy. As the ABA President, Wm. Reece Smith, Jr., recently wrote 
me, "the subject is one of paramount national concern." 

These can be historic hearings. 

As members of the Committees know, although the history of the influx 
of people throughout the world to the United States is a large measure of 
the history of the United States itself, there have been only two previous 
major legislative or executive studies of this nation's immigration policies: 
that of the Joint Commission on Immigration established in 1907 which conducted 
its studies over a period of four years culminating in a report in 1911 that 
provided the groundwork for the codification of immigration laws in the 
Immigration Act of 1917, and the Report of the Senate Committee on the 
Judiciary in 1950 leading to the enactment of Immigration and Nationality 
Act of 1952, with a study in the nature of a rejoinder by President Truman's 
Commission on Immigration and Naturalization in 1952. 

The report of the Select Commission on Immigration and Refugee Policy 
provides an opportunity for this Congress to review the workings of our 
immigration system against the historical backdrop of one hundred years of 
legislative enactments. Similarly, the Select Commission's Final Report 
prftvides the various interested entities within the ABA with an opportunity 
to review our past efforts and a focus for our current work. 

The role of the American Bar Association in offering its views in these 
joint hearings currently is more limited than the scope of the Commission's 
Final Report. As an organization of attorneys, the American Bar Association 



276 



fbcvs«s ^ts ■ajor ooiicerm l»re » the •*^»lstr«tioit of ^wstice ^» f<?r^ 
Militias Mii iapIcKHtias omt iaBT^acian policj. 

It ^s i« t>>s cc»»ts*t t>at at ^9*st f'rm tte 'e$isl*ti»« t«§iw»*ics r* 
t*e :i«i9ratiaii mkI IUti<3«»ity *ct of 19S2 far « SKrioei of ■or« tiiw 30 
j»«'^. t*e Aner^cjit 5»r Asscc^at-'^r •►as ccnt'i^nrfMs'* sti*i^*i e*Tccs4's *nS 
■»Se recoHBewsat^ORS rc^ ■'Jicrrfe f*e ;cer«tia> of oi^ »«»t§r«t'QR s»ste»T i-c 
t» pnwtae for a jr^^ts- n&is*'^ ;- :-sfrca for alieas i« our society. 

•teBjf of tfce reca«»e«^^at^:»»< t?« 4neric*« Si'- Asscct ati oi» i^s «•* »*»« 

soBe •»«»« !«:t- 

!■ this stitane^t, we s-st -^crts tre specific -gc janyit ^ti ?^s i«oe ;j 
tte *»er-?car 5a- 455cc~"«t^o« At"-^*? t*<r r«>t X >edf^ a-c --"^ jowr co«- 



I sko«la BCte liere t>*t intlklB t^e Z'S,CCC-«enc«r i&t t^iere ar«. iwjt 
svrprlsiagljr. aa^jr <i»«'-?e^t »ie»s » taw tfcis Mtioa's 'iwicratiw cc'ic^es 
ow^t t.- r: ?c. 2-c "v* 'ec5' rr^cscures sJWMid t« 5:-i5«t1i»*e<i *«c 

■8-" tir'e. :--<ev;-e^t\» , ti»e ccficies «*tc*» I wiiT e"*jne-ate. a-c 

t~c -- ; : ;*;.■; 'correct c* »e* ^Hcies. ane t.^ pn>3M:t of »*'-'^-5 c'•^J^s: 
«? ronr-:tee '- t^c S^ct'r- r* *cl»t-'-'5r-atlTe Lw; the Sectios of I«ter~ 
•wt'irr^' L3» 2-c -ts "u-:e-T«-t -iwr^j-at'cr co«w'ttee; t^e Sectloa of 
Criaiiwl Justice; a-c t*!<e 'wt'c^atioir oowlttee is t^ Secfro* of Ii»«f?- 
vidM'! ^icftts ««<i vesrcrsibil-fffes. I "fist t^ess ■''•te-est6<i s't^fes tc 
suQoest f-e r-^j"~ r* t*^ ASA's *Ts*icc-''«t, a««i re eiip*«s"?r« tsat t>e set 
done bT us sre*- t**5 rest f—^e if-Ciiss -'->i^.^t?d^> ^fTT >* rr'. t*^ *r^->fat'rr 
for our cwrect effarts- 

w^it fclTsws is «■ »»we''at-c<- :^- t~e *arixs re»'t"-e-: ^5.^ rc"'c-e> 
i-led, Hher« appropriate. S excerrts ^"on r^e ^ac^C'^^.r<? r<?>r-t 
f-c iw sapport of that rolicy. 

(1) Federal Age»cj Structigrg 

"8esol*«<:. :~a: -t 's tv »inic>r of t*« ^igrica" 5ar Associaffor t*at 
tke iiBigratjoB «»i MtioMllty l««s cf ti»e i*it*c States s'-r.'c >e arg-cec 
ts consolidate iato tke Oepartaeat of Justice or as li 



277 



goverraent the iHilgration and nttionallty responsibilities noM vested tty Im 
separately in :-: ent of State and in the Attorney General." 

"A study of the present dual actainistration of our law has led the 
toerican Bar Association to t~€ f^'.^owing conclusions: 

'i' '"-2: -: 5^--; "^cs:- rvsts for such duplication of responsibility 
:«o independent agencies of govemaent; 

(b) That such duplication is wasteful , unnecessary and unjustifiable; 
and 

(c) T>»t ^t 'S '> tMir national interest to consolidate into a single 
cd- . i : i;£ cy the i»»tiqration and naturalization responsibilities 
vesteo in tne rsr=-u«nt of State a-^d in tne Attorn^ General.* 

?:;-dl of Gc.r : J = r-^ved. Hay 1958. This positio- *-3> ^*e- 
;r ;:;; fro» current ABA policies because of its age. but still 
rr : :.- :-e isi::iation's vieMpoint) 
(2' 5:-..::--e -:- :-r :- = ::- -; = ••-:? ;-: -::;;:? 

»-rr.-f. :.:.= :; :- "e -; — istrati'.e ~::r dure Act (5 U.S.C. 
3TD5, 3S^-i. 5Sc:, ~5:'., forcer '.j 5 U.S.C. 1010) will insure the ir»det>ef»dence 
r* Srecial Inquiry Officers and result in other iaproveiKnts. 

Therefore Be It Resolved, That it is the opinion of the Association that 
:-e -T- : ation and Nationality -2-J -; ^ to provide tba: ?re:'al 
Inquiry Officers shall be subject to the Administrative Procedure Act (5 U.S.C. 
3105. 3344. 5362. 7521. fonae- .. 5 J.S.C. 1010) anc t-a: :-= Section of Ackiini- 
strati^e _;« re 3jt»>orired and directed to advance i::--:--cte 'egislation to 
f;: e-c a-c :3'>c i-;"! ctner iters as -t ;ee~s appropriate to carr> out this 
resolution.' 

It is the position of the Anerican Bar Association that the Administrative 
Procedure Act should -:: re ;: e: aw^; that its basic purpose to separate 
quasi -judicial officers t" :. trse who investigate and prosecute and to wain- 
tain independent hearing officers should apply wif- ec-a" force to t^e '.-r-- 
gration arc Nat-'alization Service as it dc^s to otner agencies of our govem- 
aent. (See Stateaent, ABerica- ?=• -;:: ation. before Joint Hearings of the 
Subcomittees :* t-e ees on the Judiciary, 82nd Congress, 1st Sess; 
S.716. H.R.2379 and H.R.2816; March 20. 1951. pp. 536-537.) The ABA favors 
the appointaent of Hearing Officers subject to the protections and procedures 



278 



of the Administrative Procedure Act (House of Delegates approved, February 1968). 
(3) Board of Immigration Appeals 

(A) The American Bar Association favors the creation of statutory status 
for the Board of Immigration Appeals. The present Board was established by 
regulation by the Attorney General in 1940 when the Immigration and Naturali- 
zation Service was transferred from the Department of Labor to the Department 
of Justice. The Board is empowered to determine appeals of specified decisions 
made by delegated officials within the Immigration and Naturalization Service 
including immigration judges and district directors. Its decisions are subject 
to review by the Attorney General. The Board is composed of a Chairman and 
four associate members who serve at the pleasure of the Attorney General. 
The present basis upon which the Board is established renders its operation 
and conduct at the sufferance of the Attorney General. Such status obviously 
affects not only the appearance but the fact of its independence. (House of 
Delegates approved, February 1958) 

(B) Jurisdiction 

"WHEREAS, The Board of Immigration Appeals is the judicial arm of the 
Attorney General in immigration and citizenship matters and whereas there is 
presently a lack of uniformity in providing for appeals to the Board in all 
cases involving adjudication; 

"BE IT RESOLVED, That the Association is of the opinion that final 
administrative appeals should lie to the Board of Immigration Appeals from 
all decisions of district directors, regional commissioners, and special 
inquiry officers under the Immigration and Nationality Laws; and that the 
Section of Administrative Law be authorized and directed to advance appro- 
priate legislation to that end and take such steps as it deems appropriate 
to carry out this resolution." (House of Delegates approved, February 1960) 

"BE IT RESOLVED that the American Bar Association recommends that the 
present system of bifurcated administrative review of immigration 
determinations is awkward and undesirable, and the Association urges the 
Attorney General to amend his regulations so that the sole agency authorized 
to consider administrative appeals from determinations of the Immigration and 
Naturalization Service would be the Board of Immigration Appeals. 

"BE IT FURTHER RESOLVED that the American Bar Association recormends that 



279 



the Attorney General's regulations be amended to assure to the immigration 
judges and the Board of Immigration Appeals complete responsibility for 
exercising discretion and authority in order to assure just and equitable 
results in the cases they consider. (House of Delegates approved, August 1980) 

1. Administrative Appeals . At one time all administrative reviews in 
immigration cases were considered by the Board of Review, an advisory body 
established by the Secretary of Labor, when he was charged with administration 
of the Immigration Laws. When immigration functions were transferred to the 
Attorney General in 1940, he established the Board of Immigration Appeals, 
which superseded the Board of Review and was authorized by him to decide 
rather than to recommend. Since then, the Attorney General has made various 
enlargements and modifications in the jurisdiction of the Board of Immigration 
Appeals. See 1 Gordon & Rosenfield, Immigration Law and Procedure , Section 
1.10a. 

A 1955 reorganization of the Immigration and Naturalization Service 
established four regional offices. One aspect of this reorganization conferred 
on the regional commissioners the authority to consider appeals from various 
decisions of district directors denying various types of applications under 
the Immigration Laws. 8 C.F.R. 103. l(m). At the same time, the Board of 
Immigration Appeals, in addition to its traditional power to review deportation 
and exclusiofi orders, has retained the authority to review other types of 
decisions made by district directors. 8 C.F.R. 3.1(b). This divided apparatus 
for administrative reviews often operates irrationally, e.g., in requiring that 
appeals from denial of visa petitions for relatives go to the Board of 
Immigration Appeals, while appeals from denials of visa petitions on the 
basis of occupational preferences go to the regional commissioners. 

We submit that all appeals from immigration determinations should be 
entrusted to a single appellate body -- the Board of Immigration Appeals. 
Such a change would end the confusion and irrationality inherent in the 
present approach. Moreover, in confiding appellate responsibility in an 
agency which is outside of the Immigration and Naturalization Service, and 
divorced from its direct enforcement responsibilities, it would provide 
enhanced assurance of fair and impartial consideration. 



280 



2. Authority of immigration judges and Board of Immigration Appeals . 

Another example of divided responsibility relates to the determinations of the 

district directors on the one hand and of the immigration judges and the Board 

of Immigration Appeals on the other. The district directors have authority to 

consider a wide variety and enormous volume of applications under the immigration 

laws. Their consideration is informal and usually results in alproval of the 

applications. The district directors have no power to make adjudications of 

deportability, which are made in formal, due-process hearings of special 

inquiry officers (now known as immigration judges), whose decisions may be 

appealed to the Board of Immigration Appeals. Sec. 242(b), Immigration and 

Nationality Act, 8 U.S.C. 1252(b). 

Very often, ancillary determinations by district directors may have a 

bearing on the alien's deportability, e.g., granting applications for asylum, 
extensions of lawful temporary stay, or permission to depart voluntarily. 

In 1961 the immigration judges were given authority to consider, in the 
deportation proceeding, specific types of applications for discretionary 
relief: voluntary departure, suspension of deportation, registry, adjust- 
ment of status, and withholding of deportation because of anticipated per- 
secution. See Foti v. INS , 375 U.S. 217 (1973). However, district directors 
still retain authority to consider certain of these applications, although 
their denial of the requested relief does not preclude renewal of the appli- 
cation before an immigration judge de novo in a deportation proceeding. 
8 C.F.R. 242.17. But in other situations, the immigration judge and the 
Board of Immigration Appeals have no authority to review determinations by 
the district directors which may have a direct effect on deportability, e.g., 
refusing an extension of temporary stay, a change of nonimmigrant status, or 
various types of waivers. See 1 Gordon and Rosenfield, Immigration Law & 
Procedure §|1, 10c, 5.7b. 

In our view, the present limitations on the authority of the adjudicating 
officers are unsound and undesirable. A simple change in the regulations 
could confer upon immigration judges and the Board of Immigration Appeals all 
the discretion and authority of the Attorney General which is appropriate and 
necessary for a just disposition of the cases before them. From the stand- 
point of the government, such a change is desirable, since it would vest the 



281 



power of ultimate decision in a single tribunal, subject only to a single 
judicial review in the United States Court of Appeals. See Kwok v. INS , 
392 U.S. 206 (1968). 

From the standpoint of the affected party, such a change is equally 
desirable, since it would enable him to get a full determination of his claims 
in one proceeding. And we again emphasize the desirability of entrusting 
final determinations in such matters to administrative tribunals which are 
divorced from direct enforcement responsibilities. 

We therefore recommend that the regulation be amended to assure to the 
immigration judges and the Board of Immigration Appeals complete responsibility 
for exercising the Attorney General's discretion and authority in order to 
assure just and equitable results in the cases they consider. 
(4) Board of Visa Appeals 

The American Bar Association favors the establishment of a Board of Visa 
Appeals to review denials of visas by United States consular officers. 

Under present law, decisions to grant or to deny visas are vested solely 
in United States consular officers and are not subject to review by the 
Secretary of State who otherwise has the responsibility for enforcing and 
administering immigration and nationality laws and supervising consular officers. 
The grant of unreviewable administrative authority to subordinates of the 
Secretary of State is inconsistent with all other governmental structures, 
including courts as well as administrative agencies. The American Bar Asso- 
ciation favors the establishment of a Board of Visa Appeals with the authority 
to hear appeals from denials of visas by United States consular officers. 
(Board of Governors approved, October 1955; reaffirmed. May 1973) 

(5) Judicial Review of Administrative Orders Excluding Persons Seeking 
to enter the United States 

"The statutory requirement that judicial review may be obtained only 
by habeas corpus has caused hardship to entry applicants from contiguous 
countries, since they have been required to surrender into custody in order 
to bring habeas corpus proceedings. The limitation of judicial review to 
habeas corpus in such situations serves no useful purpose. 

"A person who is excluded from entering the United States has always 
been able to seek judicial review challenging a final order for his exclusion. 
The original form of review was by habeas corpus. Chin Yow v. U.S. . 208 U.S. 



282 



8 (1908). After enactment of the Administrative Procedure Act an additional 
remedy in the form of declaratory review became available. Brownell V. Shunq , 
352 U.S. 180 (1956). However, a 1961 statute specified that thereafter 
review of an exclusion order shall be "by habeas corpus proceedings and not 
otherwise". Section 106(b), Immigration and Nationality Act, 8 U.S.C. 1105a(b), 
as amended by Section 5, Act of September 26, 1961, 75 Stat. 653. 

"This limitation to habeas corpus has restricted the opportunities for 
judicial review by unsuccessful entry applicants from contiguous countries, 
who usually have returned to their homes while their entry applications were 
being adjudicated. Habeas corpus traditionally has involved some form of 
custody or restraint. Jones V. Cunningham , 371 U.S. 236 (1963). Consequently, 
it has been deemed necessary for such unsuccessful entry applicants to sur- 
render into custody in order to support a habeas corpus challenge. Indeed, 
the regulations expressly sanction surrender to custody for this purpose. 
8 C.F.R. 237.2. 

"In our view, the need to surrender to custody in such cases in order 
to provide a jurisdictional basis for judicial review is unnecessary, incon- 
venient and undesirable. We have therefore recommended that the statute be 
amended to authorize review of an exclusion order by declaratory judgment as 
well as by habeas corpus proceedings." (House of Delegates approved, 
August 1974). 
(6) A dministration of Labor Certification Program by the Department of Labor 

"Be It Resolved, That it is the opinion of the American Bar Association 
that the following actions should be taken to improve the labor certification 
program administered by the Department of Labor. 

"1. Section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. 
1182(a)(14) should be amended to restore the labor certification requirement 
to its form before the 1965 statutory amendments, so that this requirement 
can be imposed by the Secretary of Labor upon a specific finding of need. In 
the alternative, if the present statutory procedure is retained, the statute 
should be amended to require the Secretary of Labor to act on labor certifi- 
cation requests within (90) ninety days, in the absence of good cause stated, 
and to direct the Secretary of Labor to publish regulations setting forth the 
criteria and procedures followed by him in passing on such requests. 



283 



"2. The Department of Labor should improve its facilities for public 
information and communication in the following respects: 

a. The long-delayed issuance of regulations implementing the 
1973 recommendations of the Administrative Conference should 
be published forthwith. 

b. The Department of Labor should immediately inaugurate a 
program, in compliance with the public information require- 
ments of 5 U.S.C. 552, to publish as regulations or other- 
wise make available to the public all interpretations, policy 
determinations, and decisions adopted in its administration 
of the labor certification requirement. The Department of 
Labor should designate and publish specified decisions as 
precedents. 

c. The Department of Labor should publish or otherwise make 

available, on a current basis, its internal criteria for 
adjudicating labor certification requests. 

d. The Department of Labor should publish or otherwise make 
available to the public current information regarding types 
of labor certification requests granted and types denied. 

"3. The Department of Labor should make the following procedural 
improvements in the labor certification process, in order to assure com- 
pliance with the law and with the requirements of due process: 

a. No determination to deny a labor certification request 
should be made before the applicant is informed of the evidence 
or information on which the proposed denial is predicated and 
given an opportunity to rebut such evidence or information. 

b. In order to promote uniformity and facilitate the correction 
of errors, the Department of Labor should make provision for 
centralized review of labor certification denials in appro- 
priate cases. 

"4. The Department of Labor should take steps to avoid reliance on 
inadequate and erroneous procedures in adjudicating labor certification 
cases, and particularly to follow court decisions in which such errors are 
indicated. Among such improper procedures are the following: 



284 



a. Use of inadequate and unreliable information, such as 
telephone surveys and computer tabulations of supposedly 
avai lable workers. 

b. Use of unrealistic criteria. Ignoring the employer's needs 

and the alien's specialized skills, resulting in an unsupportable 
finding that qualified workers are available to fill the open 
position. 

c. Use of excessive geographic criteria of availability, dis- 
regarding the statutory directive that qualified workers must 
be available at the place of intended employment. (House of 
Delegates approved, August 1976). 

" 1977 Changes . On January 18, 1977 new regulations were promulgated 
(42 F.R. 3440) effective February 18, 1977 and now contained in 20 C.F.R. 
656 (1978). These regulations made drastic changes in procedures which have 
prolonged the administrative process with resulting delays of 6 to 12 months 
instead of the 90 days advocated by our 1976 resolution and report. 

Prior to filing an application for a labor certification, it is now 
necessary to place an advertisement for the position in a newspaper of 
general circulation. A copy of the advertisement (first phase ad) must be 
submitted with the application which now must contain in addition: 

1. Notice of posting of the job on the employer's premises and 

2. A complicated list of 16 assertions incorporating 20 C.F.R. 
656.21(b). The regulations require documentation of these 
16 assertions. 

A job order must be placed with the local state employment service 
followed by a second phase ad and a waiting period of 30 days. There- 
after the case is sent through the state offices to the regional certi- 
fying officer who can certify, require additional information, or issue 

notice of adverse findings with a 45 day rebuttal period. After rebuttal, 
the certifying officer will issue or deny a certification. An appeal can be 
taken within 45 days to an administrative law judge. Rebuttal and appeals must 
be sent by certified mail. 

If certification is denied, the employer is precluded by regulations from 
filing for the same job for six months (20 C.F.R. 656.29). 



285 



On October 27, 1977 the Labor Department published a 150 page Operating 
Instructions Handbook. 

Decisions of the Administrative Law Judges are distributed to the public 
but none of the decisions of certifying officers or of the Washington, D.C. 
office of the Department of Labor are ever designated as precedents or dis- 
tributed. Moreover none of the available material permits the practioner 
to gain an insight as to the criteria utilized in rendering decisions by the 
certifying officers. 

Criticism of changes and existing practices . 

1. There is still great disparity in the handling of cases by 

the various state agencies and the ten regional certifying offices 
as to the number and frequency of advertisements, the type of 
advertisements, the documentation required, and the number of 
applications to be submitted (most require duplicate copies, 
some require triplicate and some quadruplicate). 

2. Some regions take six months to process a case to notice of - 
findings or certification by the certifying officer, others 
take up to 12 months. The new procedure is geared to increase 
paper work and consume time. 

3. The certifying officers still do not fully explain denials. 

4. Some certifying officers require advertising in professional 
journals and ethnic newspapers which have little if any circu- 
lation in the city of employment - a requirement which is neces- 
sary and contrary to Digilab v. Secretary of Labor , 495 F. 2d 323 
(1st Cir., 1974); Reddy. Inc. v. U.S. Dept. of Labor , 492 F. 2d 
538 (5th Cir., 1974) which only require recruitment in the city 
of employment. 

5. The penalty of six months preclusion from making a new appli- 
cation where there has been a denial is neither justified by 
practical considerations nor by any legal authority. 

6. The printed labor application forms (MA 7-50B) printed in 
April, 1970 and still utilized and distributed still bear a 
false legend that an alien who works without authorization will 
subject his employer to denial of labor certification. 



286 



A. Criminal and Economic Sanctions for Employment of Illegal Aliens 

"Be It Resolved, That the American Bar Association supports in principle 
proposed legislation which would apply both criminal and economic sanctions 
to those knowingly employing illegal aliens, and to that extent endorses in 
principle Section 2 of H.R.8713 (94th Congress, 1st Session) and its Senate 
counterpart. Section 12, S.3074 (94th Congress, 2nd Session), to the extent 
that the penalty provisions, civil or criminal, for the knowing employment 
of illegal aliens are enhanced and strengthened; and 

"Be It Further Resolved, That the American Bar Association supports 
the proposals in Section 1 of that Bill for enlargement of the statutory 
remedy for acquisition of permanent residence status, through a procedure 
known as adjustment of status, by aliens who are in the United States in 
temporary or irregular status, by making this remedy available to natives of 
Western Hemisphere countries, but states its opposition to the provisions of 
this Bill which would deny this remedy to aliens in the United States who 
entered as crewmen and to those in the United States who have accepted un- 
authorized employment. 

"Be It Further Resolved, That the American Bar Association supports 
the provisions, in Section 4 of that Bill, granting amnesty from expulsion 
to certain illegal aliens, but urges that the bill's language should be 
clarified in order to avoid inequities and favors elimination of its one- 
year limitation for making applications for this relief. 

"Be It Further Resolved, That the American Bar Association urges 
expansion of the Bill's savings clause so that it will preserve the benefits 
available under existing law to thousands of persons with pending applications. 
(House of Delegates approved, August 1976) 
B. Forfeiture of Vehicles 

"RESOLVED, That the American Bar Association opposes the legislative 
proposals to revise the November 1978 amendments to Section 274 of the 
Immigration and Nationality Act of 1952, which provide for the forfeiture 
of vehicles, vessels or aircraft used in illegal transportation, concealment, 
harboring, or smuggling of illegal aliens. (House of Delegates approved, 
February 1980) 



287 



Vehicle Seizure Provision 

To combat the illegal alien traffic, an amendment to Section 274 of 
Immigration and Nationality Act of 1952 was enacted in November 1978 to 
provide for the forfeiture of vehicles, vessels, or aircraft used in the 
illegal transportation, concealment, harboring, or smuggling of illegal aliens. 
Pub. L. 95-582; 92 Stat. 2479 (2 Nov 78). The amendment added subsection (b) 
to the already existing criminal penalty section for these crimes (See APPENDIX 
A). No such provision previously existed. 
Legislative History 

The legislative history is sparse. H.R. 12393 was originally designed 
to add an expansive subpoena provision. to the False Claims Act. Congressman 
Rodino introduced the bill on 26 April 1978, and the Committee Report (H.R. 
Report 95-1447) makes no reference to the vehicle seizure provision for immi- 
gration law. On 18 September 1978 the unmodified bill passed the House, and 
on 13 October 1978 without report was considered by the Senate. Senator Byrd, 
acting for Senator DeConcini, offered the amendment without comment or ex- 
planation which was then passed. The bill was then discussed in the House 
which concurred with the Senate amendment. 
Department of Justice Proposed Amendments 

Assistant Attorney General Patricia Wald, now Circuit Judge, expressed 
three major concerns about the forfeiture provision: (1) the burden of 
proving illegal activity before seizure is on the Government, (2) the Govern- 
ment's burden in bearing costs if an innocent owner is invoved, and (3) the 
satisfaction of lienholders without expense to them. The proposed amendments 
would bring the immigration provision more in line with the vehicle forfeiture 
provisions for drug and custom offenses. 
Law of Forfeiture 

The Supreme Court in Calero - Toledo v. Pearson Yacht Leasing Co. . 
416 U.S. 663 (1974), describes the effect and impact of forfeiture provisions. 
A leased yacht was seized without notice or hearing afforded the owner, because 
the police authorities had reason to believe that there had been marijuana 
on the ship. The owner was not entitled to notice and hearing prior to the 
seizure, and the owner's innocence of any involvement in the marijuana activity 
was irrelevant. The ship, anthropomorphical ly speaking, had sinned. Ancient 



288 



law characterized it as deoband (given to God), and it became the property of 
the sovereign. The Court would not overturn this established precedence that 
innocence was irrelevant and noted the federal forfeiture provision was 
similar to Puerto Rico's provision. 416 U.S. 633, 686 n.25. Once the object 
is forfeited the sovereign may, as a matter of administrative grace, grant 
remission or mitigation. 
Practical Considerations 

The existing provision expressly exempts from seizure vehicles of owners 
or persons in charge who did not consent or act in privy with the illegal 
act and stolen vehicles. Alien smuggling is most commonly conducted with 
motor vehicles, and the Government could readily seize those vehicles driven 
by alien smugglers. The persons being smuggled are ready witnesses against 
the drivers and lower echelon personnel, but often they do not know who are 
the large scale operators (i.e. "heavies"). Often the "heavies" will not 
mkae any claim of ownership for fear of exposing themselves to criminal 
liability. Many of the cars used for such activities often have questionable 
registration. The burden of proof is not unreasonable for the Government, 
but the statutory scheme has been modified by the implementing regulations 
that place the burden on the owner to show innocence once there is probable 
cause to seize the vehicle. 8 C.F.R. 274.1 (K) and Supplementary Information 
44 Fed. Re^. 22704 (17 Apr 79). These regulations do not adequately protect 
the Congressional exemption from seizure, but the proposed amendments would 
support these regulations. The scope of Section 274 is broad, and the potential 
for abuse is great. If a criminal case could not be proved, an individual's 
auto (i.e. worth $5,000) which may be necessary for his work could be seized 
by an^ immigration officer (9 C.F.R. 274.2) for alleged alien smuggling activity. 
For example, a person gives a hitchhiker a ride who turns out to be an illegal 
alien. This innocent act would not be the subject of a criminal prosecution, 
but the person's car could be seized. This person would have the burden of 
proving in an administrative hearing his innocence, and the cost (especially 
attorneys fees which are not reimbursed) would be prohibitive. 

Cars seized are stored, and in narcotics cases when they are returned 
the storage charges are excessive. In many cases accessories or parts have 
been removed, seats or the interior damaged (some believe intentionally), 



289 



and the cars themselves subject to abuse. If the owner or lienholder was 
innocent, then they should be restored to the status quo ante . If immigration 
officers have a doubt, they should resolve it before they seize the vehicle. 
Forfeiture proceedings should not be proliferated as a device to penalize 
without the procedural protections of a criminal proceeding. 
(8) Relief From Deportation and Denaturalization 

A. STATUTES OF LIMITATION RELATING TO ALIEN DEPORTATION PROCEEDINGS . 
RESOLVED, That it is the opinion of the Association that the immigration 

and nationality laws of the U.S. be amended to provide for a ten-year statute 
of limitations within which proceedings for deportation must be instituted, 
except that the statute of limitations shall not apply to proceedings for 
deportation based upon an admission of, or conviction for, a crime which is 
not subject to statute of limitation under Section 3281 of Title 18, USC, and 
that the Section of Administrative Law be authorized and directed to advance 
appropriate legislation to that end and take such other steps as it deems 
appropriate to carry out this resolution. (House of Delegates approved, 
February 1960; reaffirmed. May 1973) 

B. STATUTE OF LIMITATIONS ON DENATURALIZATION AND CANCELLATION OF 
CITIZENSHIP CERTIFICATES 

WHEREAS, aliens who have become naturalized American citizens may be 
subject to judicial proceedings to revoke their naturalization at any time 
pursuant to 8 U.S.C. 1451; and 

WHEREAS, derivative American citizens may have their citizenship 
certificates cancelled at any time pursuant to 8 U.S.C. 1453; and 

WHEREAS, the efficient administration of justice and fairness require 
debarment of stale claims; 

BE IT RESOLVED, That it is the opinion of the Association that the 
Immigration and Nationality Laws of the United States be amended to provide 
for a ten-year statute of limitations within which proceedings must be 
instituted for revocation or cancellation of citizenship certificates, and 
that the Section of Administrative Law be authorized and directed to advance 
appropriate legislation to that end and take such other steps as it deems 
appropriate to carry out this resolution. (House of Delegates approved, 
February 1968; reaffirmed. May 1975) 



290 



C. DISCRETIONARY AUTHORITY OF ATTORNEY GENERAL 
Be It Resolved, That the American Bar Association urges that the 
immigration laws be amended in the following respects: 

1. The Attorney General should be given discretionary authority to 
waive any ground for deportation for the following classes of aliens 
in the United States: 

a. The spouse, or child of an American citizen or of an alien 
lawfully admitted to the United States for permanent residence. 

b. An alien who has resided in the United States for at least 
3 years. 

c. An alien whose deportation would result in exceptional 
hardship to himself or to close family members in the United 
States, in addition to those designated in a above. 

d. An alien whose services or abilities would be beneficial 
to the United States. 

2. The Attorney General should be given discretionary authority to 
waive any ground for exclusion for the following classes of aliens 
seeking to enter the United States. 

a. The spouse, parent, or child of an American citizen or of an 
alien lawfully admitted to the United States for permanent residence. 

b. An alien who has resided in the United States for at least 3 years. 

c. An alien whose deportation would result in exceptional hardship 
to himself or to close family members in the United States, in 
addition to those designated in a above. 

d. An alien whose services or abilities would be beneficial to the 
United States. 

e. Refugees. 

f. An alien excludable for a past offense or condition when at 
least 3 years have elapsed since the occurrence of the offense or 
condition. 

g. An alien excludable for criminal misconduct for which a foreign 
government has issued a pardon or has expunged the conviction. 

3. The procedures for exercising the foregoing discretionary authority 
should be set forth in regulations adopted by the Attorney General and 



291 



should be consistent with the nature of the relief sought and the procedures 
utilized for the consideration of other discretionary authority. 

Be It Further Resolved, That the President of the Association or his 
designee is authorized to present the substance of the foregoing resolution 
to appropriate committees of the Congress, specifically the Judiciary Com- 
mittees of the United States Senate and House of Representatives. (House of 
Delegates approved, August 1975) 

D. JUDICIAL RECOMMENDATIONS AGAINST DEPORTATION 

Be It Resolved, That the American Bar Association urges that the statutory 
provisions relating to the deportation of aliens convicted of criminal offenses 
should be amended in the following aspects: 

a. Relief from deportation upon grant of a pardon or judicial 
recommendation against deportation, now restricted to convictions 
for crimes involving moral turpitude, should be made applicable to 
to deportability predicated on any criminal conviction; 

b. The specific preclusion making these clemency provisions 
inapplicable to convictions relating to narcotics or marijuana 
should be eliminated; and 

c. The specification that a judicial recommendation against 

deportation shall be ineffectual unless it is made by the 

sentencing court at the time of first imposing judgment or 

passing sentence, or within 30 days thereafter, should be eliminated. 

Be It Further Resolved, That the President of the Association or his 
designee is authorized to present the substance of the foregoing resolution 
to appropriate committees of the Congress, specifically the Judiciary Com- 
mittees of the United States Senate and House of Representatives. (House 
of Delegates approved, August 1975) 



292 

Mr. Mazzoli. Mr. Mailman. 

STATEMENT OF STANLEY MAILMAN, ASSOCIATION OF 
IMMIGRATION AND NATIONALITY LAWYERS 

Mr. Mailman. Thank you. My name is Stanley Mailman and I 
speak on behalf of the Association of Immigration and Nationality 
Lawyers, as a former president, as a member of its board of direc- 
tors and at the request of its president, Allen Kaye. 

I too have a statement which I 

Mr. Mazzoli. Without objection it will be a part of the record. 

Mr. Mailman. Thank you. I don't want to read the statement or 
to attempt to address all of the points that are made or the sub- 
jects that are dealt with in the statement. I think it would be more 
useful, in just the few minutes that we have, to try to address 
myself to those of the issues that I can see that the committee this 
afternoon seems to be particularly interested in now, and on which 
I think we can be most helpful. 

FRAMEWORK 

I would like to select as a framework for that, the issue of 
sanctions, partly because of my admiration for the courage of Ms. 
Martinez in taking a position which is obviously so unpopular with 
the committee, but also because I think the kinds of experiences 
which the members of our Association, as lawyers frequently repre- 
senting aliens, have, largely supports the position that Ms. Mar- 
tinez has taken. 

identifiable ethnic groups 

Let me say at the outset that I think there is a misunderstanding 
frequently by Americans, some of them from recent immigrant 
groups, (I put quotes around, white immigrant groups) that they 
came to the United States, they were discriminated against, but 
they made it. They tend to lose sight of the fact that more readily 
identifiable ethnic groups have a more difficult time. 

I know as a matter of personal experience that when I walk into 
a building duded up in my pinstripe suit, I am frequently not asked 
for identification, although the rule is that everybody should be. 
But an identifiable person, again foreign-looking, and I am putting 
the same kind of quotation marks around it that Ms. Martinez did, 
would more likely be asked for such identification. 

sanctions 

Now I have spent a little bit of time on that issue because we 
share the concerns that some of the groups that have expressed 
them have with respect to sanctions, and we recognize that we are 
not dealing with absolutes here. If we were convinced that we 
really were inundated with undocumented aliens, and they threat- 
ened our society terribly, and if there were nothing else to be done 
about it, then we might be more disposed to accept the sanctions 
that the committee is considering, even though we don't like some 
of the effects of those sanctions. So let me address myself to some 
of those issues. 



293 

First of all, Mrs. Schroeder suggested earlier today that we do 
not seem to have focused on our problem, and I would say that we 
really haven't focused on our problem. I think that the Select 
Commission and perhaps this committee or these committees have 
assumed that we have a terrible, very large problem in the United 
States with undocumented aliens. 

NO RELIABLE STUDIES 

The fact of the matter is that no effective study was done by the 
Select Commission, that it has accepted the conclusion without 
testing it and that the General Accounting Office has only this 
month come out with a report stating that there is no reliable 
estimate, in all the studies done, showing that we have so many 
aliens undocumented in the United States. Nor do we have any 
reliable study showing that they present a great problem. 

There are other solutions, not perfect solutions, not a panacea; 
but it is perfectly clear to those of us who work with the immigra- 
tion law that the Immigration Service is certainly a stepchild 
within the Department of Justice. It has worked without a commis- 
sioner for almost the last 2 years. It has worked without a general 
counsel for almost the last 2 years. The designation of people as 
acting officers or officials is a message that goes right down the 
line. Funds are not allocated to the Immigration Service. There is 
not an effective electronic or computer system for the Immigration 
Service. 

When clients ask me: 

I have come to the United States and my time is up on the permit; I would Uke to 
know from you, Mr. Mailman, is there a check on this? Does the Immigration 
Service know? 

I must tell them honestly, the Immigration Service as a practical 
matter doesn't know how long you are staying here because they 
are just not checking closely. 

So one of the things we would say to the committee is do take 
the tools that you have in place and use them. You don't have 
people who are prosecuting the deportation hearings. Not enough 
investigators, not enough trial attorneys. I was at another commit- 
tee hearing a year or two ago. People from the Immigration Serv- 
ice were asked, how long will it take to get a deportation proceed- 
ing going against overstayed soccer players? And an assistant com- 
missioner said, it might take 4 to 6 months. 

We have immigration judges, special inquiry officers, who regu- 
larly, when you come into their court at 2 or 2:30 and you say — 
"We are ready to proceed" — will say — "Gee, is it going to be a long 
hearing?" "It may very well. Your Honor." "Well gee, I have a 
train to catch at 2:30." 

Now that ties in very closely with the issue of what kind of 
immigration court shall we have? I am not sure it should be an 
article I court. We are concerned that we should have some kind of 
a leavening process in the judiciary, as we have it, the courts of 
appeals. But there ought to be a well paid distinguished group of 
people who act as judges and who act as appellate judges in the 
Immigration Service. 

Thank you. 

[The prepared statement of Mr. Mailman follows:] 



294 



Prepared Statement of Stanley Mailman 

My name is Stanley Mailman. I am former President 
and current member of the Board of the Association of Immigration 
and Nationality Lawyers and appear at your invitation and at 
the request of the President of our Association, Allen E. Kaye. 

Our Association is a bar association esteJalished in 
1946 which now has more than 1,500 members in 22 chapters and 
at large, throughout the continental United States and in such 
places as Hawaii, Guam, Puerto Rico, the Virgin Island, the 
Bahamas, Canada, Hong Kong and England. In the past, represen- 
tatives of our Association have testified on proposed legislation 
in the fields of immigration and nationality before your 
committees and other committees of the Congress. We hope that 
the accumulated expertise or ovir membership, who have worked on 
a daily basis with the Immigration cuid Nationality Act and the 
agencies involved in its administration, have been helpful in 
the shaping of legislation. During the last two years, many of 
our members have devoted considerable time to the study of the 
problems now confronting Congress by preparing detailed studies 
and presenting their recommendations for the use of the Select 
Commission on Immigration and Refugee Policy. We are, therefore, 
particularly pleased to have this opportvinity to state ovir 
views at this hearing on those issues within our every-day 
experience, following generally the order used by the Select 
Commission in its report. We understand that we may have the 
opportunity of later filing a more detailed presentation. 

SUPPORT ENFORCING LAWS; TRAINING IN RIGHTS AND LAWS 

Firstly, we join in the Select Commission's recommenda- 
tion that the law be firmly and consistently enforced against 
those who assist aliens in entering the United States improperly. 
We also believe that the system for controlling the overstay of 
aliens be improved. We strongly favor the Commission's 



295 



recommendation that a high priority be given to the training of 
INS personnel in the constitutional rights of aliens and citizens 
and believe, moreover, that it is in the national interest to 
enhance the knowledge of INS personnel of the immigration laws 
generally. They can then more effectively enforce those laws 
and the rights of those who have entered the United States, 
whether legally or illegally will be better protected. 

OPPOSE EMPLOYER SANCTIONS 
In respect of employer sanctions recommended by the 
Select Commission, we are greatly troiobled. The proposed complex 
of warnings , civil and criminal fines , the documentation that 
would necessarily be developed, and the enormous paperwork, 
administrative apparatus and expense that would all be generated 
in the process, loom as an overwhelming, even frightening 
specter for those of us who are concerned with maintaining 
the traditional pattern of American personal and business 
freedom. 

The penetration of our borders by undocumented 
aliens , and the abuse of the visa process and its effects on 
American law continues to be a serious problem. Particularly 
as lawyers, we are sensitive to what may be a growing disregard 
for our laws and values. We are not convinced, however, 
that the scope of the problem warrants a response that would 
very possibly deprive us of basic and important personal 
rights, and impose additional burdens and costs of conducting 
business in a marketplace already overwhelmed by government 
regulation . 

It has been widely conceded that undocumented 
aliens have not had a negative impact on social services; 
indeed, they seem to contribute more in taxes than they take 
in social services. The concern centers rather on job 
displacement and wage depression. Here, the studies become 



296 



fuzzy, inconclusive and sometimes contradictory. Certainly, 
no body of hard information has been developed establishing 
that undocumented aliens in the United States have made a 
visible dent in the availability of jobs to American personnel, 
or have brought down their wages. 

Moreover, it is difficult even to begin to assess 
these problems without having accurate studies of the number 
of undocumented aliens currently in the United States or the 
rate they add to our population. That information was not 
developed by the Select Commission and an April 6, 1981 
report by the General Accounting Office concluded that 
despite recent studies, reliable estimates are not now 
available.* In the absence of such essential information, we 
should not be burdened by the personal and business infringe- 
ments that would follow from such sanctions without a 
reasonably certain showing of their necessity. If, indeed, 
we are genuinely threatened with being overrun, facing a 
serious loss of jobs, and suffering a wage depression caused 
by an influx of undocumented aliens, we should then consider 
the restrictions that would make our way of life more akin to 
the highly regulated society of many other countries. Is not 
having to produce an identity card for any governmental or 
institutional transaction simply a luxury that we cannot 
afford? The answer to that, we think, is not yet known. We must 
therefore still oppose a system which would unfairly expose 
American citizens and legal residents who are racially and 
culturally identifiable, with certain immigrant groups, to 
probable discrimination in their personal lives and their 
employment opportunities. The effects would undoubtedly also 

be felt by corporations and other business entities, burdened 
with the resulting regulation and law enforcement duties. 

We have already wandered too far from the sense of individuality 



*The Number of Undocumented Aliens in the United States 
Unknown (U.S. Govt. Printing Office, 1981). 



297 



and freedom, that we inherited from our national forebears 

who fought hard to secure them, to create yet another tool 

by which government and other institutions, with their 
advanced technology and electronics , can further invade our 

privacy. Also, little attention has been given to the staggering 

cost to the taxpayer for the apparatus needed to implement, 

police and enforce such a system of sanctions. 

Finally, our Association has argued that other 
methods currently available that might reduce our iindociimented 
alien population, have not been effectively used. Unhappily 
current instruments of immigration law enforcement seem to 
have deteriorated during recent years. We would hope that 
instead of reducing f\mds for the Immigration Service and the 
Consular Service, increased resources be made available for 
their adequate staffing and for enhancing their effectiveness 
through the use of computerized arrival-departure records and 
other electronic technology. Moreover, we feel that the 
enforcement of our wage-hour laws by the Department of Labor 
could be more vigorously pursued for the benefit of citizens 
and aliens alike. Such enforcement would better protect 
our domestic work force and reduce the opportunities for job 
displacement by undociimented workers. 

SUPPORT FOR LEGALIZATION 
Our Association supports the Select Commission's 
recommendation that a legalization or "amnesty" program be 
adopted so that alien who had entered without inspection or 
who overstayed, and have lived here for a prescribed period of 
time, sinking roots into our society, can be absorbed and no 
longer suffer the hazards, exploitation and fear of underclass 
status. Some of our members, however, familiar with the 
limited success of similar programs in Canada cuid certain 
European countries, question whether amnesty would encourage 
such aliens to present themselves. 



298 



SELECTION SYSTEM; INVESTMENTS; LABOR CERTIFICATION 

Without commenting generally on the selection system 
proposed by the Select Commission, we offer certain specific 
observations. With respect to immigrant investors, our 
Association had earlier and independently advocated an alloca- 
tion of visa numbers to qualified investors who have invested 
or are in the process of investing a siabstantial amount of 
capital, well above the figures last used in the regulations 
of the Immigration and Department of State in respect of 
nonpreference immigrant investors. It is difficult to justify 
the denial of at least a certain number of visas to aliens who 
can make such a substantial contribution to our economic 
well-being. Indeed, it would seem that substantial amounts of 
capital investment emd resulting job opportunities that would 

ordinarily accrue to the United States are instead benefiting 
the United Kingdom and Canada, among other countries, because 
of their more sympathetic treatment of immigrant investors. 

We also wish to comment on Section 212 (a) (14) of the 
Immigration and Nationality Act, namely the labor certification 
program. The Select Commission split equally on a streamlined 
version of the present system requiring job offers, and a revised 
procedure, analogous to the pre-1965 system, under which 
immigrants without family here would be admissible without a 
U.S. job offer in the absence of a negative certification. We 
favor a version of the latter option. We do so largely for 
the reasons given by Ben Burdetsky, then Deputy Assistant 
Secretary for Manpower, testifying on behalf of the 
Department of Labor before this House Subcommittee on September 
25, 1975. 

In his telling statement, Mr. Burdetsky showed that 
the job offer program was incredibly ineffective. Firstly, 
it affects only a small percentage of the immigrants who enter 
the United States under our selection system, namely the third 



299 



and sixth preference immigrants who account for only 20% of 
the 270,000 under our current law. In absolute numbers, this 
is 54,000, a very small percentage of our total immigration 
which includes immediate relatives and refugees. That these 
54,000 can have any appreciable effect on our economy is 
hard to believe, even more difficult to establish. Moreover, 
Mr. Burdetsky pointed to a Department of Labor study which 
demonstrated that 50% of the immigrants who entered with a 
labor certification, changed occupations - not just jobs - within 
two years after arrival. The cost of this system to the 
government alone, not to speak of the employers who individually 
participate, is staggering and is probably in the tens of 
thousands of dollars for each certification. Moreover, the 
system is a frustrating hoax on the many American employees 
who respond in good faith to advertisements required by the 
system and whose chance of obtaining jobs, inevitably slated 
for alien beneficiaries, is minimal. Without delineating the 
details , we would favor a program which would leave to the 
Immigration Service the approval of petitions on the basis 
of knowledge and skills, with the Department of Labor having 
the opportunity to impose a negative certification in respect 
of occupations over-supplied in given areas, determined on 
the basis of economic and demographic information. Refine- 
ments of such a program would require reports to the Depart- 
ment of Labor in respect of unusually high recruiting by 

individual employers and permit employers to show on an 
individual basis that a job opening with special requirements 

cannot be filled in certain areas, despite genuine information 

on the occupation to the contrary. 

REFUGEES 
The committees are being addressed on refugees and 
asylum by organizations whose everyday work is devoted to this 
subject. We would comment that, in terms of appropriate hearing 
of the asylum claims presented by aliens already in the United 



300 



states or who have just reached our shores, the Select 
Commission's recommendation for establishing the position of 
asylum admissions officer and permitting an asylum appeal, 
seems both fair and feasible. 

EXPAND SECTION 245 ADJUSTMENT 
We note that the Select Commission has recommended 
that the present system by which aliens in the United States 
are permitted to adjust their status to lawful permanent 
residents, be continued. Under that system, aliens who are 
paroled or admitted to the United States and qualified for a 
visa, with certain exceptions, are eligible to change their 
status without leaving the United States. We would eliminate 
all but one of those exceptions. 

The main exception is the alien who has taken 

employment in violation of his status and who is not an 
immediate relative of an American citizen. In practice, this 

has meant that aliens who have taken employment without 

authorization, and who are qualified for visas must tax not 

only their pocketbooks, but the additional facilities of our 

government agencies necessary to complete their processing 

even though persuasive humanitarian factors argue for their 

prompt adjustment. It is much simpler and more cost effective 

to have their status adjusted by the Immigration Service as 

a matter of discretion, in the now prevalent one-step procedure 

than to have them processed by the Immigration Service for a 

petition and then processed again at an American Consulate 

abroad. While there are no statistics on this, the anecdotal 

evidence among our members is that the prohibition of 

Section 245 to unauthorized employees has not inhibited 

violations of the immigration law. With respect to crewmen, 

the abuses that produced the prohibition are no longer a 

significant factor, for reasons that do not relate to Section' 

245. It may be, however, that the bar should be continued 



301 



against transients : their contact with the United States is 
legally so ephemeral that they should not, philosophically, be 
able to avail themselves of the procedures for adjustment. 

In the event the exceptions are maintained we would 
favor removing the discretionary factor in respect of those 
aliens who are eligible in the same way that visas are issued 
to eligible aliens. 

FAVOR FACILITATING TEMPORARY VISA ISSUANCE 

Our Association generally favors the facilitation 
of visa issuance for nonimmigrants recommended by the Select 
Commission in respect to students, tourists, busines 
travelers and intracompany transferees. We assume that should 
consular officers be empowered to issue intracompany transferee 
visas without the necessity of an Immigration Service approval 
in cases where the company is well-known at the consulate, 
this would not preclude concurrent jurisdiction by the 
Immigration Service. Many of our members concur also with the 
Select Commission's recommendations which would eliminate 
certain restrictions on foreign medical personnel. 

ADMINISTRATIVE NATURALIZATION: QUALIFYING SUPPORT 

The proposal for administrative naturalization seems 
to stem from the recognition by the Immigration Service 
itself that the great majority of cases do not present serious 
issues and can be routinely completed. The requirement of 
a court decree, while adding an appropriate solemnity, 
seriously slows the completion of the process. On the other 
we would not favor a system where naturalization can be denied 
by the Immigration Service without the right to trial before 
a judge to which the applicant is now entitled. The right 
to acquire American citizenship is simply too important to 
be denied effectively by an administrative officer in the 
employ of an enforcement agency. Moreover, recision of 
naturalization should remain a judicial rather than an admin- 
istrative function. 



302 



FAVOR FORMAL REVIEW OF SOME CONSULAR DECISION 

We disagree with the Select Commission's recommendation 
to retain the current system which precludes formal review of 
any consular decision. Such a system is pregnant with the 
possibility of abuse, which unhappily occurs. We recommend that 
in euiy case where the interest of an American or resident 
individual or form has been manifested by the filing of a 
petition which the Immigration Service has approved and in cases 
involving a treaty visa, the alien applicant should be afforded 
administrative review of an ultimate visa denial. 

REENTRY; OPPOSE MODIFYING "FLEUTI" 
The Commission would amend the current reentry 
doctrine by which even a lawful permanent resident alien 
returning to the United States is subject to exclusion on 
any of 33 qualitative grounds. It refers also to the 
uncertainty of the so-called "Fleuti"* doctrine under which 
the return from a brief, casual and innocent trip outside 
the country does not constitute an "entry." The Commission's 
recommendation is unclear. We are opposed to it if it would 

resolve ambiguities by effectively modifying the Supreme 
Court's holding in Fleuti by barring any returning resident, 
however casual or brief his departure, for certain crimes 
committed abroad, certain political acts or beliefs, for 
entry without inspection of for persecution of others. The 
Commission does not seem to make a distinction between a 
longtime resident who casually walks across the border for a 
strong coffee in Mexico, or a new immigrant. Many lawyers 
who are familiar with the evolving reentry doctrine would be 
more comfortable with that than with the uncertainty and 
'harshness of such a modification. 



* Fleuti V. Rosenberg , 302 F.2d 652 (1962) remeuided sub nom. 
Rosenberg v. Fleuti , 374 U.S. 449 (1963). 



303 



time limits after which deportation proceedings could not 
be instituted. 

ESTABLISHMENT OF NEW COURT 

The Association agrees with the Commission's 
findings regarding the inadequacies in the present structure 
for immigration hearings and appeals. We do not, however, 
at this time opine as to the particular form or justification 
and authority for the establishment of a new court, whether 
under Article I of the United States Constitution or other- 
wise. We do believe, however, that such a court should have 
statutory status and be independent of the 
Immigration Service and possibly of the Attorney General. 

The court should be provided with adequate 
administrative support so that it can function professionally 
and render decisions in a timely manner. There should be a 
trial term (in lieu of special inquiry officer hearings) and an 
appellate term (in lieu of the Board of Immigration Appeals), 
and recourse should be had by petition to review to the 
appropriate circuit court of appeals. Furthermore, the judges 
should receive a sufficiently high salary to attract competent 
individuals. Discovery procedures should be established and 
important due process rights provided for. The present 
appeals process is but a creature of regulation, and the 
process should have a statutory foundation and description. 

EXCLUSION AND DEPORTATION GROUNDS 
Finally, we join with the Select Commission in 
asking the Congress to modify the current grounds of 
exclusion. It is unfortunate that the Select Commission, 
while voting against retention of the current grounds, 
did not make specific recommendations for their amendment. 
The present absolute bar on various grounds no longer enjoys 
wide support and has no solid basis in the requirement of the 
welfare, safety and security of our country. In a thorough 



304 



recasting of the provision relating to exludable grounds 
attention should also be given to the principle of rehabilita- 
tion so that an alien would not be barred forever because 
of an act done when he was 19 years old. We also favor a 
parallel modification of the grounds of expulsion and would 

RECOMMENDATIONS CONCERNING THE APPLICATION OF THE FOURTH, 
FIFTH AND SIXTH AMENDMENTS 

The Association agrees with the Select Commission 
that the powers of Immigration and Naturalization officers 
to interrogate, to search, and to arrest, should be fixed 
by statute. The Commission's proposals as to the provisions 
of such a statute, however, are inadequate. Starting from 
the premise that immigration officers "should have the 
authority to interrogate, arrest and search" in order to 
enforce the immigration laws, the Select Commission fails to 
square these powers with the constitutional foundation: the 
Fourth and Fifth Amendments. The powers of arrest, search, 
and interrogation by any law enforcement agent of the federal 
government, including immigration officers, emanate from 
these Amendments. While the Commission would take more cognizance 
of these constitutional provisions than under prior law, it 
does not go far enough in its recognition of the constitution- 
ally mandated rights of aliens. 

Temporary Detention 
In particular. Section VIII. A. 1. of the Select 
Commission's proposal concerning the powers of immigration 
officers is a laudable advance toward compliance with constitu- 
tional standards. This section concerns the authority to 
detain temporarily persons whom the officers reasonably suspect 
are present i.i the United States unlawfully. The proposal conforms 
substantially with the constitutional standards for stopping 
and questioning suspects, as enunciated by the United States 
Supreme Court in Terry v. Ohio , 392 U.S. 1 (1968), and U.S. v. 
Brignoni-Ponce , 422 U.S. 873 (1975). Further, the Commission's 



305 



recommendation makes clear that officers do not have the 
authority to stop and question based on mere suspicion of 
alienage alone. Rather, investigative stops may only be 
effected upon a reasonable belief, based on articulable facts, 
of unlawful presence in the United States. This criterion is de- 
signed to prevent the harrassment of persons of foreign appear- 
ance who may well be citizens or aliens with lawful status in 
the United States. 

While the proposals of the Select Commission are 
laudable given the prevalence of the current practice of 
stopping persons based solely on foreign appearance, and the 
widespread practice of warrantless arrests based on these 
stops, the changes do not go far enough to eliminate these 
abuses. The change of the quantum of information required 
by officers from reasonable suspicion of alienage to 
reasonable suspicion of unlawful presence is too subtle to 
ensure full compliance by immigration officers. What is 
needed is an express statement of the articulable facts which 

can justify an investigative stop. Should a catalogue of 

such factors not be feasible, the statute at the very least 

should explicitly prohibit the use of a person's 

foreign appearance to justify a stop. Reliance on factors 

such as race, ethnic appearance, or inability to speak 

English should be clearly interdicted in order to assure that 

current discriminatory practices in choosing targets of 

"stops" is discontinued. 

The Warrant Requirement 
The central consideration with respect to the 
Commission's proposals for arrest warrants in Section VIII. A. 2. 
is the level of professionalism of the law enforcement officials 
of the Immigration and Naturalization Service. Arrests based 
on information derived from investigative stops premised on 
nothing more than a person's ethnic appearajice are symptomatic 
of sloppy law enforcement. Such intrusions should be premised 



306 



on specific information derived from investigations and 
information located in Service records. Arrests based on 
preliminary investigation, moreover, should be supported by 
an arrest warrant to assure compliance with the legal 
standards. Only in the case of exigent circumstances should 
an arrest warrant be foregone,' and in those circumstances 
the burden should be on the officers to demonstrate that a 
warrant could not be obtained. This type of procedure asks 
no more of Service officers than is required of other profes- 
sional law enforcement personnel. While the Commission, in 
its recommendations on arrests and arrest warrants, suggests a 

preference for arrests with warrants, -warrants should be 
mandated for the protection of citizens and aliens lawfully 

in the United States. 

The Commission also asks that probable cause be 
required for an arrest. It nevertheless envisions a system 
whereby arrest warrants may be issued and warrantless arrests 
evaluated by the same officials who. are charged with enforce- 
ment. While all Immigration and Naturalization Service 
employees are executive branch members, there is provision for 
review under the present statute. by nominally indepen- 
dent quasi-judicial of ficials— the immigration judges. The 
purpose of requiring a warrant under the Fourth Amendment 
is to interpose an impartial magistrate between individuals 
and the government to protect against the arbitrary exercise 
of power. . The issuance of warrants and review of warrantless arrests shoxild 
not be carried out by the officials who are responsible for 
enforcement. 

Permissible Scope of the Search 
Section VIII. A. 3., Searches for Persons and Evidence, 
conforms generally with the basic constitutional standards for 
searches and seizures. However, one crucial problem exists 
in the Commission's suggestion which ought to be addressed in 
any statutory revision. The courts, including the Supreme 
Court, have often stated that a search must be limited to the 



307 



scope necessary to achieve its purpose. This prescription 
should also be applied to the prerogatives of immigration 
officers. The Commission's recommendation apparently permits 
unlimited searches at the border, just as is permitted under the present 
statute in Section 287(c) of the Act. Imnigration officers, however, are 
charged with screening the entry of people at the border. As 
such, the subject of the immigration officer's interest is 
ordinarily standing before him: the alien himself. The most 
useful and efficacious tool for carrying out his screening 
duties, then, is the authority to interrogate and not to 
search. To the extent that searching is necessary, it should 
only extend to those areas and objects; for example, vehicles 
where aliens who are seeking unlawful entry may be secreted. 
Searches at the border, however, under the present authority 
are essentially unlimited in scope and extend even to the 

personal papers and correspondence of the alien. This type of 

search, while possibly helpful to the officer in determining 

the bona fides of an alien's entry, is repugnant to the Fourth 

Amendment and raises serious First Amendment problems as well. 

Thus, such search authority should be proscribed, absent 

probable cause and a warrant. 

Likewise, a search premised on probable cause and 

exigent circumstances should be limited by the nature of the 

search — the entry of private dwellings in search of an alien 

suspected of unlawful presence in the country. Thus, again 
absent a warrant and probable cause to conduct such a search, 

there is no justification for rummaging through such an alien's 

personal belongings in an effort to develop evidence for use 

at his deportation hearing. 

The Exclusionary Rule 
We disagree with the recommendation of the Select 
Commission against the application of the 

exclusionary rule in deportation proceedings. The report of 
the Commission states: "A majority of the Commissioners, 



308 



however, believe that such an extension would intrude on the 
expeditious processing of deportation proceedings, to the 
detriment of effective law enforcement," One would only need 
to substitute the words "criminal cases" for "deportation 
proceedings" to achieve a statement that undoubtedly would 
be subscribed to by an overwhelming majority of law enforce- 
ment officials in this country today. The argument in favor 
of the most effective law enforcement possible was apparently 
resolved, however, by the first Congress of the United States 
in enacting the Fourth Amendment and sending it to the 
states, where it was ratified and incorporated into the 
Constitution. The Fourth Amendment represents a balance 
struck between effective law enforcement and the rights of 
individuals to be free from unreasonable searches and 

seizures. While the Supreme Court has recently opined that 
the exclusionary rule is but one method of enforcing the 

Fourth Amendment, it is significant that the Court has also 

found the rule to be worth the costs to society where it has 

strong deterrent value. See U.S. v. Janis , 428 U.S. 433 (1976) 

There, the Court found insufficient deterrent value where the 

evidence was illegally seized by police officers of a state 

jurisdiction for use in a civil proceeding, and where the 

evidence was eventually used in a federal criminal proceeding. 

The Court held that the ultimate use of the evidence in that 

case in a criminal proceeding was not forseeable to the state 

officers, and that they could not have been deterred from its 

seizure by suppressing the evidence. 

In stark contrast, the use of evidence illegally 

obtained by immigration officers in deportation proceedings, 

is so direct and forseeable that the deterrent impact is 

incontestable. The situation is directly analogous to the 

rationale for suppression in criminal cases. The failure 

to provide for exclusion of evidence leaves no effective 

remedy for violations of basic constitutional rights which 

apply indisputably to aliens present in the United States as 



309 



well as citizens. Such rights have little meaning to aliens 
without some recourse to an exclusionary remedy. Whether or 
not recourse to that remedy "intrudes on the expeditious 
processing" of deportation cases is outweighed by the desired 
deterrent impact. Any contrary suggestion would be an 
argument against the Fourth Amendment itself. 

Miranda-Type Warnings 
Significantly, the Commission Report makes no mention 
of a recitation of constitutional rights to the arrested or 
suspected alien, such as set forth under Miranda v. Arizona , 
384 U.S. 436 (1966) . This omission represents a regression 
from the current Service regulations that required such a reci- 
tation under certain circumstances. Experience in the criminal 
justice area shows that there is nothing onerous about requiring 
a simple recitation of rights to . a suspect. The only 

mention of a notification to the alien of any type is included 
in Section VIII. B. of the report, where the Commission recommends 
that the right to counsel attach at the time of deportation 
and exclusion hearings, and that the alien be notified of that 
right at that time. Such belated notification, hbwever, is 
woefully inadequate, as has long been recognized in the criminal 
justice context. By the time of the deportation hearing, many 
critical stages of the proceeding have concluded and statements 
have been taken from the alien. For all practical purposes the 
preparation of the government's case is complete. The attach- 
ment of the right to counsel at this stage has little real 
meaning to the alien. Actually, under the current practice, 
the alien is notified of certain Miranda- style rights at the 
time of issuance of an order to show cause. At a minimum, the 
current practice should not be discontinued, and it would be 
far preferable to notify the alien of his rights, particularly 

the right to counsel, even earlier at the time of arrest and 
interrogation. If the alien is to be accorded the full 

measure of his constitutional protection, then it is essential 

that the recitation of rights be comprehensive and occur at 

an early stage of the proceedings. 



310 



Right to Counsel 
We support the Commission's proposal regarding 
assigned counsel for those aliens who cannot afford to provide 
their own counsel. However, by mciking such provision only for 
permanent residents, the Commission creates an artificial 
limitation that is difficult to justify in constitutional 
terms. As the right to counsel is applicable to all persons 
in the deportation context, then the distinction between 
penurious permanent residents facing deportation and penurious 
aliens in other than permanent resident status is untenable, 
and might be a denial of equal protection and due process. It 
seems inevitable that the provision of counsel to all persons 
unable to provide such services for themselves will become a 
requirement of deportation and exclusion proceedings, since 
the stakes are so incredibly high, and the potential penalty 
so onerous . 



Respectfully submitted, 
Stanley MaiJLman 



311 



STANLEY MAILMAN 
THEODORE RUTMIZER 

ARTHUR C. HELTON 
BRENDA 8ERKMAN 
KENNETH A. SCHULTZ 



Mailman & Ruthizer, p. c. 

ATTORNEYS AT LAW 

laaO AVENUE or the AMERICAS 

NEW YORK. NEW YORK I0r04- 

telephone: f2I2) S^I-CAOO 

rca telex: 237761 
cable; mavocat 



GUSTAV LAZARUS 

COUNSEL 



May 21, 1981 



Mr. Quentin Crommelin, Jr. 
Staff Director 
United States Senate 
Committee on the Judiciary 
Washington, D.C. 20510 

Dear Mr. Crommelin: 

I return herewith the transcript of my remarks of May 6 
at the joint hearing of the Senate and House subcommittees. 

While my remarks in the brief minutes afforded for oral 
comment dealt primarily with the subject of "employer 
sanctions" I did not mean to convey that that subject was 
deemed of greater importance by the Association of Immigration 
and Nationality Lawyers than others addressed in our written 
statement. At the same time you should know that the 
position of the Association of Immigration & Nationality 
Lawyers to express opposition to sanctions was formally 
adopted on April 24, 1981 at a monthly meeting of the 
Association's Board of Governors. 

Sinceirely yours, 
Stanley Mailman 



SM/rr 
Enclosure 



312 



Mr. Mazzoli. Thank you very much. If any of you panelists have 
information like that, whether or not it would normally fit into a 
printed statement, about some of the day to day activities of INS, it 
would be very useful to us because we are working on that, too. 

Mr. Semler. 

STATEMENT OF MICHAEL SEMLER, MIGRANT LEGAL ACTION 

PROGRAM 

Mr. Semler. Thank you, Mr. Chairman. 

I am Michael Semler, an attorney with the Migrant Legal Action 
Program, which is a nonprofit law firm funded by the Legal Serv- 
ices Corporation to assist local legal services attorneys in repre- 
senting migrant farmworkers. 

This afternoon I would like to speak exclusively about the H-2 
program. As you know, employers may now import alien workers 
for temporary labor if unemployed persons capable of performing 
such labor cannot be found in this country. Although the INS has 
final authority over H-2 admissions, the primary responsibility for 
protecting U.S. workers has been placed with the Department of 
Labor. Each year approximately 15,000 workers are certified for 
temporary agricultural jobs in the United States, primarily in 
apples and tobacco in the Northeast and sugar cane in Florida. 

I have been representing farmworkers in connection with the H- 
2 program for 4 years. During this period I have formed several 
very definite impressions as to the effect of this program. The first 
of these is that the H-2 program does not serve its intended pur- 
pose. The H-2 provisions were enacted to provide a single mecha- 
nism, available on the same terms to all employers, for responding 
to exceptional labor shortages. However, this has become a small 
scale bracero program, allowing a few favored agricultural employ- 
ers to routinely import contract workers to meet their labor needs. 

I also firmly believe that the H-2 program displaces U.S. farm- 
workers and depresses agricultural working conditions. Although 
the H-2 provisions were designed to ensure priority to U.S. work- 
ers, the certification system is so flawed that H-2 workers are 
being admitted without a meaningful determination of whether 
U.S. workers are available. 

Further, I believe this program allows employers such complete 
control over the foreign workers that they become a captive sub- 
class within our society, legally admitted but nevertheless denied 
most employment-related protections. 

The H-2 program makes no significant contribution to the con- 
trol of illegal immigration, the advancement of U.S. foreign goals, 
or other major national interests. Indeed, this program does not 
serve even its stated purpose of responding to local labor shortages, 
for access to foreign workers has been governed more by tradition 
than by demonstrated need. Most importantly, there is no justifica- 
tion for repeated supplementation of the agricultural labor market 
through this type of program. Agricultural workers can satisfy 
their labor needs with employers already in the United States if 
working conditions were brought up to 20th century standards. For 
these reasons, I believe that the H-2 program should be terminat- 
ed. 



313 

Although I am testifying today only on behalf of the migrant 
legal action program and our farmworker clients, my conclusions 
are shared unanimously among organizations representing farm- 
workers on a national level. The National Association of Farm- 
worker Organizations and the Association of Farmworker Opportu- 
nity Programs have authorized me to express their opposition to 
the H-2 program today. I can also state to you that opposition to 
the H-2 program is universal among attorneys working with farm- 
workers in H-2 areas, and among labor organizations representing 
farmworkers. 

Mr. Chairman, time does not allow me to set out my criticisms of 
the H-2 program in detail. In the time that remains, I would like 
to focus on the recommendations of the Select Commission concern- 
ing revision of the H-2 program. 

The Select Commission made three recommendations in this 
area. The first of these was that DOL should remove economic 
disincentives to hiring H-2 workers. I agree with this recommenda- 
tion and urge that the several noneconomic disincentives also be 
removed. Perhaps the most fundamental weakness in the H-2 pro- 
gram is that only one-half of the recruitment process is now regu- 
lated. Although the Department of Labor regulates domestic re- 
cruitment, employers are free to recruit almost at will on the 
sending countries. As a result, employers exercise pervasive control 
over the contract workers and would surely continue to prefer 
these workers, even absent tax incentives. 

The Select Commission also recommended that the labor certifi- 
cation requirement be maintained. Here too I agree but would go 
further, making DOL certification mandatory, rather than advis- 
ory. Only the Department of Labor has the expertise, the recruit- 
ment mechanism, and the institutional perspective to determine 
whether U.S. workers are available and to set the terms required 
to avoid an adverse effect on U.S. working conditions. 

The third recommendation of the Select Commission was that 
DOL improve the timeliness of decisions by streamlining the appli- 
cation process. Timeliness in the H-2 program is indeed a problern. 
However, streamlining is exactly the wrong solution for there is 
already very little time for recruitment of domestic workers. Under 
the existing system, the job offers need not be filed until 2 months 
before the season, and are actually available to U.S. workers for 
only a few weeks, often only after migrant workers have left their 
homes to join the stream. Revisions in this area should be designed 
to begin recruitment earlier and to insure that the various deci- 
sions in the certification process are made without delay. 

Changes of this type would also assist the courts in dealing with 
H-2 cases. The Federal judiciary has had great difficulty with 
litigation concerning H-2 certifications. One reason for this is that 
these cases come to court almost on the eve of the harvest, requir- 
ing judicial action almost immediately. 

A second problem is that many of these cases conie to court 
without any record of domestic recruitment. When a dispute over 
terms of the job offer halt circulation of that offer, U.S. workers 
are not notified of the job and DOL cannot make a determination 
as to availability. When these cases come to litigation, the courts 
have no administrative finding as to this issue and no record on 



83-514 0-81-21 



314 



which to make this finding themselves. A tightly scheduled recruit- 
ment process would bring these cases to court earlier and provide a 
better factual record. 

Mr. Chairman, that concludes my remarks. 

[The prepared statement of Mr. Semler follows:] 



315 



Prepared Statement of Michael Semler 

Mr. Chairman, I am Michael Semler, an attorney with the 
Migrant Legal Action Program of Washington, D.C. We are a non- 
profit law firm funded largely by the Legal Services Corporation 
to assist local legal services attorneys in representing migrant 
and seasonal farmworkers. For over 10 years we have been 
working on behalf of farmworker clients through administrative 
and legislative advocacy and in litigation. Our overriding 
goal in these efforts is improvement of the employment 
conditions of one of our nation's most abused working groups. 

This afternoon I would like to speak exclusively about 
the H-2 program. As you know, under Section 101(a) (15) (H) (ii) 
of the Immigration and Nationality Act of 1952 employers may 
bring alien contract workers to this country for temporary 
labor "if unemployed persons capable of performing such 
service or labor cannot be found in this country." Although 
by statute the Immigration and Naturalization Service has 
final authority to determine H-2 admissions (by delegation from 
the Attorney General), 8 U.S.C. §1184 (c), primary operational 
responsibility for protecting U.S. workers and working 
conditions has been placed with the Department of Labor (DOL) . 
Before an employer may obtain H-2 workers he must first seek 
"certification" from DOL that no U.S. workers are available 
and that the admission of the foreign workers will not 
"adversely affect" U.S. working conditions. 8 C.F.R. §214 . 2 (h) (3) . 
Each year approximately 15,000 foreign workers are certified 
for temporary agricultural employment in the United States. 
H-2 workers employed in agriculture are concentrated in 
apples and tobacco in the Northeast and sugarcane in Florida. 

I have been personally involved in representing U.S. 
farmworkers in connection with the H-2 program for four years. 
During this period I have formed several very definite impressions 
as to the effect of this program on both U.S. farmworkers 



316 



and on the aliens admitted as H-2 workers. The first of these is 
that the H-2 program does not serve its intended purpose. The 
sole rationale for the creation of the H-2 program in 1952 
was to provide a mechanism available on the sajne terms to all 
employers for dealing with exceptional labor shortages. 
However, the H-2 program has become a "mini-Bracero Program" 
allowing a few favored agricultural employers to routinely 
import contract workers to meet all or most of their harvest 
labor needs. I also firmly believe that the H-2 program 
displaces U.S. farmworkers and depresses agricultural working 
conditions in those areas where H-2 workers are used. 
Although the statutory provisions were clearly intended to 
ensure priority in employment to U.S. workers, Elton Orchards 
V. Brennan , 508 F.2d 493 (1st Cir. 1974), the existing certifica- 
tion system is so deeply flawed that H-2 workers are being 
admitted each year without any meaningful determination of 
whether U.S. workers are available. Further, I believe this 
program allows employers such complete control over the foreign 
workers during the selection process and after admission 

that they become a capti-ve "subclass" within our society, 
legally admitted but nevertheless denied most employment- 
related rights and protections, 

I believe that the H-2 program should be terminated. 
This program makes no significant contribution to the control 
of illegal immigration, the advancement of U.S. foreign 
policy goals, or other major national interests. The H-2 
program has not served even its stated purpose of meeting local 
labor shortages, for access to H-2 workers has been governed 
more by politics and tradition than by demonstration of need. 
Most importantly, there is in fact no justification for repeated 
supplementation of the U.S. agricultural labor market. 
Agricultural employers seeking harvest workers could satisfy 
their labor needs with U.S. workers if wages and working 
conditions were brought up to 2 0th century standards. 



317 



Mr. Chairman, I would now like to illustrate the 
profound weaknesses in the existing system by addressing two 
particular aspects of the H-2 program in greater detail, i.e. 
the incentives encouraging the use of foreign rather than U.S. 
workers and the flaws in the DOL certification structure. 
Thereafter I will return to the argument in favor of termination 
of the H-2 program and consider the specific revisions suggested 
by the Select Commission. 

1. Incentives Encouraging the Use of H-2 Workers 

Many agricultural employers would prefer to hire 

foreign workers even when U.S. workers are available. 
One reason for this is that access- to temporary 

foreign workers under the H-2 program eliminates the uncertainty 

normally associated with the recruitment of an adequate 

labor force. Under the H-2 program the apple and sugarcane 

producers can arrange with the Jamaican government to produce 

a specific number of workers at a designated time and location. 

If a particular H-2 workers does not appear for work, becomes 

ill, or otherwise does not meet the employer's needs, another 

H-2 worker can be obtained to take his place. 

Access to foreign workers also frees growers from 
dealing with the heterogeneous U.S. workforce. Ma'ny U.S. 
migrant workers travel as family groups, including women, 
young children, and older relatives, complicating the employers' 
housing, record-keeping, and supervisory obligations. The H-2 
program allows growers to avoid these complexities by recruiting 
only young males. 

The H-2 program also allows the grower to block 
collective bargaining efforts. By controlling the selection 
of the foreign workers, growers prevent potential leaders 
from ever obtaining employment. Moreover, the H-2 program 
gives the employer control over the legal status of the 
aliens after they have arrived, for the alien's legal presence 



318 



in the U.S. is dependent on continued employment. 

There are also major tax incentives which encourage 

growers to employ H-2 workers. Neither the H-2 worker nor 

his employer must pay the social security tax (FICA) . This 

means that a grower can save over 6% of his wage-related 
costs simply by hiring H-2's rather than U.S. workers. 

Similarly, several states exempt employers from unemployment 

insurance (UI) taxes on wages paid to H-2 workers. 

2. The Certification Regulations 

DOL has been given the unenviable task of attempting 
to ensure that H-2 workers are not admitted unless all 
available U.S. workers have been hired. A complex set of 
regulations has been promulgated pursuant to this goal, yet 
these provisions are so seriously flawed that they provide little 
protection to U.S. workers and frustrate the effort to determine 
whether U.S. workers are available. 

The Adverse Effect Wage Rate ; The center of DOL's 
effort to avoid an adverse impact on U.S. working conditions 
is the "adverse effect wage rate" (AEWR) . The AEVm is 
intended to correct for the fact that the prevailing rate 
has been be depressed by the availability of foreign workers. 
Every agricultural employer seeking temporary foreign workers 
must guarantee that every worker hired (U.S. or foreign) will 
average at least the AEWR for each hour of employment. The 
AEWR for 1980 ranged from $4.09 in Florida (sugarcane only) 
to $3.18 in New York. 

DOL bases its AEWR on the average hourly earnings of 

all field workers in the state at issue (using figures obtained 

by USDA) . This methodology has the advantage of simplicity, 

i.e. the AEWR can be updated from year to year in 30 minutes 
by one DOL employee with a calculator. Yet this approach 

divorces the AEWR from economic reality, for it provides no 

protection against gradual wage deflation. Certain jobs are 



319 



physically difficult, are performed in bad weather, are far 
from population centers, have extremely short seasons, or are 
otherwise so unattractive that the necessary labor will be 
drawn only by wages which are high relative to other farm work. 
Yet because it is based on a state-wide average, the AEWR is 
set below actual earnings in these crops. Knowing that they 
have access to an unlimited supply of alien workers on existing 
terms and conditions, there is no reason for these employers 
to raise wages over time. 



At first glance the AEWR appears to at least set an earnings 
"floor" and thereby protect U.S. workers. Yet in fact the 
AEWR is often set so low that it adds little to the minimiim 
wage imposed under the Fair Labor Standards Act. The 1981 
AEWR initially developed by DOL for Connecticut, Rhode 
Island, and Massachusetts was actually below the FLSA minimum. 
DOL eventually set the AK-JR by raising it to the FLSA minimiitn. 

Transportation ; The H-2 regulations provide that 
employers requesting certification must "provide or pay for" 
the workers transportation to the place of employment. 20 C.F.R. 
§ 655.202 Cb) (5) . However, the regulations do not clearly 
require that payment for transportation must be made in 
advance. Certain H-2 employers discourage U.S. workers by 
refusing to provide them travel advances, even though Jamaican 
H-2 workers are receiving travel advances (apparently from 
"third parties" in Jamaica, with deductions made by the 
employer). DOL's difficulty in dealing with this situation 
has arisen in part because employers are free to structure 
the recruitment process in the foreign country to suit their 
interests and the interests of the foreign country, to the 

detriment of U.S. workers. 

DOL Protections As a Ceiling on Workers' Demands ; The 

minimum terms required of H-2 employers were designed to operate 

as a "floor" on working conditions, but DOL has also made these 



320 



provisions into a "ceiling". DOL has ruled that U.S. workers 
must accept the employment on the terms guaranteed by the regula- 
tions or not at all. Any U.S. worker who is actively seeking 
this work but demands a higher wage or better conditions 
is deemed "unavailable". U.S. workers have been unsuccessful 
in reversing the Secretary of Labor's position on this issue 
either administratively or in litigation. See Flecha v. Quiros , 
567 F.2d 1154 (1st Cir . 1977). This position precludes 
improvement in agricultural working conditions in H-2 areas 
through the normal operation of the market. 

Pro forma Recruitment ; The interstate clearance order 
system asks workers to commit themselves to a season's work 
hundreds of miles away on the basis of a complex document 
submitted by a stranger. This system can work only if 
employers make aggressive, good faith efforts to bridge the 
gap between the filing of the job order in the local employment 
service office and the actual hiring of an interested worker. 
Growers seeking H-2's rarely make these efforts. Their 
domestic recruitment is entirely pro forma , for their goal 
is to establish that no U.S. workers are available. 

Refusal to Hire Puerto Rican Workers ; Much of 
the recent history of the H-2 program has been written in 
terms of the struggle over whether Puerto Rican workers 
would be recruited for work in the Northeastern apple harvest. 
Puerto Rico Public Law #87 provides that no person may be 
recruited in Puerto Rico except under a contract negotiated 
through the Commonwealth. From 197 5 through 1977 the Common- 
wealth attempted to place Puerto Rican farmworkers in the 
apple harvest while requesting certain benefits not required 
by the H-2 regulations. Although the apple growers refused 
to sign such a contract, DOL ruled that H-2"s could neverthe- 
less be admitted since the Puerto Rican workers were "unavailable" 
Before the 1978 harvest Public Law #87 was amended 



321 



to allow the Commonwealth to waive the contract requirements. 
When the Commonwealth exercised this waiver prior to the 
1978 season, DOL determined that over 1,000 Puerto Rican 
farmworkers were available to work in the apple harvest. 
Approximately 1,000 workers were then flown to the mainland. 
The New York growers fired most Buerto Rican workers within 
three days . In Virginia and West Virginia most Puerto 
Rican workers were turned away without ever being even 
allowed to enter the camps. 

Sanctions and Enforcement ; Employers have little fear 

that they will be sanctioned for violation of the H-2 regulations. 

DOL's only tool for compelling compliance with the H'-2 
regulations is denial of certification. In one sense DOL's 

control of certification is a powerful tool, for denial of 

certification could have a major impact on growers who have 

traditionally used the H-2 program. Yet the very power of this 

sanction limits its usefulness, for DOL is extremely wary of being 

blamed for the failure of a harvest. In another sense the 

threat of denial of certification is ineffective because it 

is too weak. The INS and/or the courts may order that H-2 

visas be issued even after DOL has denied certification. 

Growers are well aware that they will not necessarily lose 

their foreign workers even if DOL does deny certification. 

C. Termination Of The H-2 Program 

There is no justification for continuation of the 
H-2 program. The only true issue in this area is that of 
employment standards, not availability. The apple producers in 
the Northeast, the Florida sugar companies, and the other 
H-2 users could satisfy their labor needs with workers 
already in this country if their wages and working conditions 
were competitive with comparable non-agricultural employment. 



322 



H-2 users sometimes argue that D.S. workers are 
physically unable to perform strenuous outdoor labor. Yet 
approximately 250,000 migrant farmworkers (and 750,000 
family members and dependents) labor for months at a time in 
fields throughout this country. Picking apples is not 
significantly different from picking grapefruit, oranaes, 
lemons, peaches, pears and many of the other crops now 
harvested by U.S. workers. Even persons who have not worked 
in "tree crops", or have not done farrawork at all, could 
certainly learn to pick apples (which is classified as 
"unskilled" work) if provided a few days of supervision. 

Growers also defend the H-2 program on the ground 
that it protects the consumer against increased fruit and 
vegetable costs. However, the labor component in the price 
of produce in the supermarkets is extremely small, e.g. less 
than l(d per pound in the case of apples. Moreover, savings 
to the consumer are more theoretical than real in those crops 
where H-2 users produce only a fraction of the regional or 
national supply. An employer using H-2 workers in this 
context may simply continue to sell his produce at the going 
rate, pocketing any saved labor costs. 

While the public benefits little or not at all 
from the H-2 program, U.S. farmworkers are being excluded 
from available jobs and blocked from improving their working 
conditions. Yet lacking union representation and significant 
political power, farmworkers cannot protect themselves. The 
H-2 program thus both reflects and perpetuates the special 
power lessness, of U.S. farmworkers. 

D. The Revisions Suggested By The Select Commission 

The Select Commission recommended against the adoption 
of any expanded temporary labor program (pp. 4 2-4 5 of the 
Commission's report) and suggested several revisions in the 
H-2 program (pp. 226-231). The following comments address the 
revisions suggested by the Commission: 



323 



"Streamlining The Application Process" ; The Select 
Coiranission suggested that DOL should "improve the timeliness 
of decisions regarding the admission of H-2 workers by stream- 
lining the application process." I believe that the "timeliness" 
of H-2 certification decisions is indeed a real problem in the 
existing system. However, "streamlining" the recruitment 
process is the wrong solution, for there is already very 
little time for the actual recruitment of domestic workers. The 
focal point of reform should be to begin recruitment earlier, 
while U.S. migrants can still be reached in the "homebase" 
states, and to ensure that the various decisions in the certifi- 
cation process are made without delay. The regulations should 
be amended to set out a timetable which provides that the clearance 
order must be filed 6 months before the harvest and that DOL must 
formally accept or reject the order within 2 weeks of submission. 
These and similar requirements would ensure that the clearance 
order would be either displayed to U.S. workers or brought 
before the courts several months before the harvest. 

Removing The Current Economic Disincentives To 

Hiring U.S. Workers ; I strongly agree with the Commission's 

recommendation that the current economic disincentives to hiring 

U.S. workers should be eliminated, although this action may 

have to come from Congress rather than DOL. Employers 

should not be permitted to keep for themselves the 6.65% 

employer social security contributions, for this is an 
employment benefit that the contract workers have earned. 

FICA taxes should be paid by the employer and by the contract 

workers just as in the case of U.S. workers, but this money 

should be gathered in a special fund and paid to the workers 

upon their return to their country. Under this arrangement 

employers would pay the same FICA taxes for both U.S. and 

foreign workers and all workers would receive the same 

compensation during actual employment. 



324 



Congress should also eliminate the exemption in the 
unemployment insurance tax for wages paid to H-2 workers. The 
UI system rests on the theory that all businesses benefit from 
the maintenance of stable consumer purchasing power among the 
temporarily unemployed. As producers for the primary market, 
fruit and vegetable growers benefit directly from this 
maintenance of consumer demand. Moreover, by hiring foreign 
workers rather than local U.S. workers, these growers directly 
contribute to any unemployment in their area. Surely it is 
unfair that these growers are the only employers exempted from 
sharing in the resultant increase in unemployment insurance 
payments. 

Retain Labor Certification by POL ; I also strongly 

agree with the Commission's recommendation that the DOL labor 

certification requirement be maintained. Indeed, I would go 

further and recommend that DOL certification be mandatory rather 

than advisory. If contract workers are to be admitted only when 
U.S. workers are not available, the government must be able 

to successfully defend its finding as to "availability". Only 

DOL has the expertise, the mechanism, and the institutional 

perspective to deterTnine whether U.S. workers are available 

and to set the terms required to avoid an adverse effect on 

U.S. working conditions. 

Ending Dependence On A Constant Supply Of H-2 Workers : 
also support the Commission's conclusion that "government, 
employers, and unions should cooperate to end the dependence 
of any industry on a constant supply of H-2 workers". The 
regular use of foreign contract workers under the H-2 program 
advances no national interest while undermining the economic 
welfare of U.S . farmworkers and legitimizing the maintenance of 
an unprotected "subclass" within the workforce. 

"Slight Expansion" ; The Select Commission did not 
recommend any expansion of the H-2 program. As the final 



325 



item in this section of its recommendations the Commission 

noted that ."the above does not exclude a slight expansion of 

the program." This comment dramatically illustrates the extent 

to which the H-2 program invites efforts to set the number of 

admissions in political terms, quite apart from any actual 

measurement of the need for these workers. The principle 

underlying the H-2 program is that foreign workers should not 

be admitted unless U.S. workers cannot be located for the 

particular job at issue. The fundamental rationale for the 

existing certification structure is that the 
determination as to availability can be made only after an 

actual effort to "test the market" for interest in the employment 

at issue. If the DOL certification process is to be retained, 

as the Commission suggested and as I likewise recommend, then 

it is that process which must determine the size of the H-2 

program. It is not consistent with Section 101(a) (15) (H) (ii) 

to mandate either an increase or a decrease in the ntimber of 

H-2 admissions prior to the completion of U.S. recruitment. 

Mr. Chairman, that concludes my prepared statement. 



326 

Mr. Mazzoli. Thank you very much, Mr. Semler, and I thank all 
you panelists because each of you is an expert in the field. To limit 
yourselves to 5 minutes is difficult, but within those constraints 
you have done very well, and I thank you for your forebearance. 

I think our panel ought to, with the indulgence of the other 
panelists, ask any questions of Mr. Shattuck so that he might get 
about his business. 

Mr. Frank? 

Mr. Frank. I ask this, Mr. Shattuck, and it's the question of the 
identification card. I guess I would like to, as a dues-paying 
member of the organization, get some elaboration on what are the 
dangers of the card that people fear? You see, I'm skeptical. I am 
not sure what they are. What is the problem if everybody has an 
identification card that he or she has to show to get a job? 

Now I understand the discriminatory problems and I share a lot 
of the fears that Ms. Martinez had. But I am talking now about the 
civil liberties privacy part of Senator Ervin standing naked in front 
of the Government. Why am I naked if I have a card? 

Mr. Shattuck. I will try to give you your money's worth if you 
say you are a dues-paying member of the organization. 

There are two points that I would like to quickly make on that 
and then I would be happy to respond in writing at length to other 
questions that the committee might have. 

First, the identification card proposal would run counter to all of 
the work that has been done over the last 15 years with respect to 
standard universal identifiers. A standard universal identifier is a 
number or a system of information which is available for a variety 
of purposes and provides for a national registry of all the informa- 
tion that is necessary to perform certain Government functions. In 
this case the function would obviously be the screening of illegal 
aliens, but other kinds of functions could be imagined over the 
course of time. 

Do we want to include information in that kind of registry about 
political activities? Do we want to include information in that 
registry 

Mr. Frank. How does having a card that you have to show in 
order to get a job, how did you get from there into me telling the 
Government about my political activities? 

Mr. Shattuck. We are talking about the possibilities of abuse. I 
am granting the fact that a very strictly limited information bank, 
such as the social security system now is is not abusive in the 
manner in which we are afraid that a national identification card 
might become. 

The second aspect is that it is an invitation to conduct adminis- 
trative searches, just as driver's license possession requirements 
are an invitation to conduct searches of drivers. But in the case of 
drivers, there are criteria that the courts require the police to 
observe before those searches are conducted, whether the car is 
weaving or whether there is some indication that the driver is not 
competent. 

In the case of a social security card that is issued for the sole 
purpose of determining whether someone is lawfully in the United 
States and can work, the only criteria for that search that can be 
imagined is whether the person appears to be foreign, or appears to 



327 

be alien. And under those circumstances I think you get back into 
the question of 

Mr. Frank. All right, that is discrimination. But what if it were 
also used to try to deal with what seems to me to be a growing 
problem of the underground economy, and leave out discrimination 
because I understand that and I am bothered by that and that may 
be conclusive for me ultimately, but I think it is also important to 
look at the broader question about what if you could solve it. How 
about dealing with the underground economy, with people who are 
working and not showing up on any roles, and cheating us all out 
of taxes? Is that bothersome to you? 

Mr. Shattuck. The question again is one of how broad the access 
is going to be to that kind of system of information, which is the 
system that would underlie the card. Obviously the card isn't going 
to be a thing in itself. Who would have access to that information? 
When employers and Government officials are routinely getting 
access to information about a person's age, work status, residence 
and various other kinds of personal criteria that are not generally 
available to Government officials and employers at the moment, we 
think that there is an invasion of privacy per se in that. But the 
additional information that might be 

Mr. Frank. I understand there are fears, but is there any sub- 
stantial body of information on negative things that have happened 
from the identifications that we now have? I mean there are a lot 
of identifications floating around. Is there any substantial pattern 
of abuse that has yet come to light? 

Mr. Shattuck. Well, generally the identification systems that we 
are talking about don't require possession, with the exception of 
two systems that I am aware of One is the draft card and the 
other is the driver's license. And there have been very compelling 
determinations that those identification systems should be re- 
quired. 

I don't know of any similar compelling determination that is 
being made with respect to work authorization because the testi- 
mony hasn't indicated to us that that kind of information is 
needed. 

Mr. Frank. We may actually be about to vote on the budget. I 
didn't think that was ever going to happen. 

Mr. Mazzoli. We have 15 minutes and I wonder if I could yield to 
the gentleman from Wyoming for 5 minutes for his questions and 
then Dan, if you have any questions. We also have to get to the 
floor. The question is do you want to come back after the floor vote 
for the followup? I think we had better not. I think we are going to 
lose our panel. 

Senator Simpson. You gentlemen are going to leave me here 
alone, are you? 

You know, what Congressman Frank is saying is very important 
to me because it sounds extraordinary but I feel like he does in 
wanting to ask, you know, where is this other than you know, a 
fear? We are going to have to deal with this thing in reality and 
not fear. 

And I have said before and I will say again, the Hispanics have 
the most to fear. Let's just start there and go. 



328 

But my question is this. How does a card, if we come to a card, 
and I hate to keep coming back, let's say permit or system or 
whatever, that simply says on it I am authorized to work and be 
employed in the United States of America, that does not have to be 
carried on the person at any time whatsoever except when you 
present it to the employer, with the only backup information that 
might be behind it the maiden name of that person's mother and 
nothing more, no bank showing anything, nothing. How does that 
present what you portray? 

Mr. Shattuck. Senator, I think the qualifications that you added 
are very important. I have addressed what I understood to be the 
thinking of a substantial number of commissioners, it is unclear 
exactly how many, which is that a card whose possession should be 
required would be issued and a substantial amount of information 
would be available in a data bank underlying that system. 

If we are talking about the system you have just mentioned, I 
don't think that it is any different from the existing system of 
social security identification. But the one difference, I suppose, is 
that it is not necessary as a precondition of employment to show 
your social security identification, and that is a condition on em- 
ployment which I think is a burden, albeit not a substantial one, 
but a burden which doesn't exist under current law, and which is 
an employment burden as opposed to a privacy burden as you 
formulated it. 

Senator Simpson. Then I am going to just ask one short one and 
I won't even use up the full time. I hear you talk about the 
administrative search, and that is curious to me because the reality 
of it is that if the guy doesn't have a card and he goes out to the 
employer in the field to work and he says I don't have a card, he 
doesn't get a job. That is what happens to him. They don't say OK, 
you don't have a card so we are going to give you an administrative 
search. I mean this is an employer out in the field. He has people 
standing in line. He says you don't have a card so get the hell out 
of here, you know. That is all he says. 

Mr. Shattuck. The search I was referring to. Senator, would not 
be conducted by the employer but would be conducted by law 
enforcement officials who are trying to find illegal aliens, and it is 
that kind of search and its discriminatory impact and invasion of 
privacy that we are concerned about. 

Senator Simpson. What is an invasion of privacy about a search 
of a person who is here illegally? 

Mr. Shattuck. Well, a search of an entire factory or a series of 
factories where there is some thought that there are illegal aliens 
and it can be quickly determined to find out whether or not they 
have the card would involve the privacy of a substantial number of 
people. 

Senator Simpson. The person you are talking about is here ille- 
gally. He has violated the laws of the United States of America. 
Now we are to tilt it the other way and come back to this; is that 
correct? That is your feeling? Only in America do we do that. We 
are good at it. 

Mr. Shattuck. Senator, I am just saying that in the instance 
where there is no other basis for conducting the search than the 
suspicion that there are one or more illegal aliens in a particular 



329 

workplace, that should not be enough to invade the privacy of all 
other workers. 

Mr. Mazzoli. Thank you very much, Senator. I wish that I could 
proceed for a full 5 minutes. I have some questions that I would 
like to ask Mr. Semler about the H-2 program, but I unfortunately 
don't have the time now. We had quite a few people yesterday who 
seemed not to be avaricious and rapacious people at heart who 
suggested that not only was there a need for H-|-2 programs, but 
there were a lot of Americans who simply weren't available to do 
some of these jobs. 

I guess the question is relative. If you pay $50 an hour as against 
minimum wage, you may find Americans prepared to do it, but you 
wouldn't find Americans eating the food they prepared because no 
one could afford to buy it. 

The world is very imperfect, and we have to deal with it. I would 
follow up with some questions with you, Mr. Semler, either by 
telephone or in writing. 

Mr. Mailman, I would love to have the name of the guy who 
comes waltzing in at 2 and says I have to leave at 2:30. We just 
today went into the effort of trying to enhance the INS budget and 
the number of positions. It is going to be very difficult for a lot of 
my friends to vote for budget increases, and it is difficult for all of 
us in this climate, to vote for that money. 

We are convinced that they are overworked, but obviously if they 
are not putting out full value for the dollars that they are earning, 
then I think that we would want to understand that too. 

So without blowing whistles on people, though I think that is an 
honorable profession, I would like to find out who is doing that. 

MOST JUDGES DEDICATED: NEED INDEPENDENCE 

Mr. Mailman. In the short time I had I didn't make the qualifi- 
cation that of course there are many very able and very dedicated 
judges. The big issue is their independence, the fact that they don't 
have the independence that they should have. Nor are they paid 
sufficiently so that you have the kind of hearing that you really 
should have and that you want. 

Mr. Mazzoli. Well gentlemen, thank you so very much. I appre- 
ciate it. I wish we didn't have such a helter-skelter life, but we 
thank you and our panel stands adjourned until tomorrow at 2. 

[Whereupon, at 5:05 p.m., the subcommittees adjourned.] 



83-514 0-81-22 



FINAL REPORT OF THE SELECT COMMISSION 
ON IMMIGRATION AND REFUGEE POLICY 



THURSDAY, MAY 7, 1981 

U.S. Congress, Subcommittee on Immigration and 
Refugee Policy of the Senate Judiciary Committee 
AND Subcommittee on Immigration, Refugees and 
International Law of the House Judiciary Commit- 
tee, 

Washington, D.C. 

The subcommittees met at 2:05 p.m., in room 2228 Dirksen 
Senate Office Building, Hon. Alan K. Simpson (chairman of the 
Senate subcommittee) presiding. 

Present: Senator Grassley; and Representatives Mazzoli (chair- 
man of the House subcommittee), Hall, Frank, and McCollum. 

Senator Simpson. The hearing will come to order. Today is the 
third and final day of our joint hearings on immigration and refu- 
gee policy. In the near future we will proceed with our own hear- 
ings in each house, Chairman Mazzoli in the House of Representa- 
tives and with me to chair a series of coming hearings over the 
next months in this chamber. At the conclusion of that, I hope we 
will have something to present to the American public in the way 
of revision and reform our immigration laws. 

As I have said, these joint hearings are rather unprecedented. 
This is the first time in 30 years that it has been done. When we 
opened the hearings I remarked that immigration and refugee 
policy reform is a perilous minefield of emotionally charged issues. 
The real need is there to do something. That need of course is 
challenged by historical political inertia. For the first time I see 
the signs being favorable to do something. We see constituencies 
forming together, and they are not historically aligned constituen- 
cies, either. 

So I think the American people are saying do something— some- 
thing that is fair, that is balanced, that is without racial overtones 
or characteristics, which have characterized our other immigration 
policies in years past; do something in our national interest, some- 
thing unmistakable, something reasonable and something for heav- 
en's sake, understandable. 

That is our mission and we continue it. I hope we can continue 
the debate in a calm and a compassionate and deliberate type of 
proceeding, recognizing the tremendous difficulty of the question 
itself and recognizing the sincerity of those who will speak to it. 

I believe that the first 2 days of the joint hearings have indicated 
that we can conduct the debate in that manner. That is something 
that Chairman Mazzoli and I have pledged to do and are deter- 

(331) 



332 

mined to do, either jointly or in our separate capacities. We will 
continue to conduct them in that way in the coming months. 

Let me recognize Chairman Mazzoli of the House subcommittee. 

Representative Mazzoli. Thank you very much, Mr. Chairman. I 
would like just a couple of moments. Again I want to thank you, 
as I have done before, for the great cooperation you have shown 
and your staff has shown in helping us prepare these meetings. 
They have been extremely interesting to me, and I think fruitful 
for the consideration of these vexing issues. I think they have 
shown pretty clearly to all the people who would care to look that 
these two subcommittees have the intention to take some action. 

It isn't easy, because as the gentleman from Wyoming has said, 
it is a political minefield. But I believe that if there were ever the 
portents, and I am not always great on omens, they are excellent 
now for some action. I am hoping that action we take is going to be 
in fulfillment of what this nation stands for, which is fairness and 
balance. We have assembled before us, with panels yesterday and 
the day before and today, the very experts we need to make these 
judgments. 

So Mr. Chairman, I want to thank you again and your people, 
and I appreciate your hospitality these last several days. 

Senator Simpson. Thank you very much. I believe you had a 
unanimous consent request under your House rules? 

Representative Mazzoli. I ask unanimous consent, Mr. Chair- 
man, that this meeting be permitted to be covered by TV broad- 
cast, radio broadcast, and still photography. 

Senator Simpson. Well, that sounded very good, whatever it was. 

Representative Mazzoli. It is not bad for off the cuff. 

Senator Simpson. Over here we just keep plowing along and if 
anybody will stay, we are grateful. 

Senator Grassley, did you have any comments, since you are the 
only other member of either subcommittee now here? If you did, it 
is certainly accepted in a brief form. 

Senator Grassley. No, Mr. Chairman, I don't have any opening 
statement, but I am glad to be able to be here to listen to this 
testimony and be made more intelligent on the general subject. 

Senator Simpson. Well, I deeply appreciate your interest in this 
issue as a new member of this subcommittee. These joint hearings 
have already proven to me that the five of us in the Senate 
subcommittee are ready to work and are producing themselves and 
their staffs for that purpose. 

Now we will go forward with the panel on public organizations. 
We have Mr. Charles Sternberg, the chairman of the Committee on 
Migration and Refugee Affairs, the American Council of Voluntary 
Agencies for Foreign Service, Inc.; Mr. Roger Conner, executive 
director of the Federation for American Immigration Reform; Ms. 
Gladys E. Alesi, executive director of the American Immigration 
and Citizenship Conference. It is nice to have you here. And Ms. 
Phyllis Eisen, the director of the immigration program of Zero 
Population Growth. 

So if you would proceed, please. I believe you have been informed 
of the time limitations. Your entire remarks will be presented into 
the record. I might add that those remarks, which I personally 
have had a chance to review, as well as those by all of the partici- 



333 

pants in the panels today, are extraordinarily important to us, pro 
and con, and very helpful. 

So if you would proceed — first come, first served. 

STATEMENT OF CHARLES STERNBERG, CHAIRMAN, COMMIT- 
TEE ON MIGRATION AND REFUGEE AFFAIRS, AMERICAN 
COUNCIL OF VOLUNTARY AGENCIES FOR FOREIGN SERVICE, 
INC. 

Mr. Sternberg. Thank you very much. Mr. Chairman, Mr. 
Chairman, Senator Grassley, my name is Charles Sternberg. I am 
the chairman of the Committee on Migration and Refuge Affairs of 
the American Council of Voluntary Agencies. The agencies that 
signed the statement which you have and which I am not going to 
read perhaps should nevertheless be listed by me. 

They are the American Council for Nationalities Service, the 
American Fund for Czechoslovak Refugees, Church World Service, 
the Hebrew Immigrant Aid Society, International Rescue Commit- 
tee, Lutheran Immigration and Refugee Service, Migration and 
Refugee Service of the United States Catholic Conference, Polish 
American Immigration and Relief Committee, Tolstoy Foundation, 
World Relief and the Young Men"s Christian Association. Col- 
leagues from these agencies are with me and if you care to direct 
any questions to them, they are of course ready to reply. 

Together, the organizations I have just mentioned have spon- 
sored and resettled in the United States pretty much all the refu- 
gees who have come here since the inception of American refugee 
programs. They represent the refugee arms of the major American 
religious communities. They represent important ethnic communi- 
ties, nationality groups, and at least two of them have neither a 
religious nor a national characteristic. 

The testimony we prepared and which I very briefly highlight 
here deals exclusively with section 5 of the report and the recom- 
mendations of the Select Commission, which I believe is entitled 
"Refugees and Mass Asylum Issues."" We limited ourselves to this 
one section because all of us place a great emphasis on refugee 
matters in our work. Some of us actually do not have a general 
immigration program, general immigration activities. Sharing the 
same concern, it was easy for us to reach a concensus, which is 
presented to you in the statement which you have. 

Quite frankly, had we tried to reach a concensus on the very 
thorny and complex immigration issues that the Select Commission 
grappled with, we may not have succeeded, at least not as easily. 

Coming now to the highlights of our testimony, first we are 
pleading for a worldwide implementation of the Refugee Act of 
1980, the purpose of which was to establish a universal refugee law. 
At this time there are areas in which substantial groups of refu- 
gees cannot apply for admission to the United States. Some of 
these groups are excluded by design and we have made a special 
plea for Chinese and Cuban refugees who right now cannot apply, 
and some of them are excluded by the geographic limitations which 
resulted from the consultation process that took place twice in the 
past. We believe it is not necessary that such exclusions be present 
in our refugee policies. 



334 

I am not speaking of numbers. We are not discussing the ques- 
tion of whether there should be a certain number of Chinese, a 
certain number of Cubans, a certain number of Burmese. I could 
mention many nations which have produced refugees. 

All we are pleading for is that quotas be set in such a way that a 
refugee anywhere has a chance to apply and that at least some 
modest numbers be set aside for those who do not belong to the 
major groups of refugees, with whom for understandable historical, 
traditional, political reasons, we are now mainly concerned. 

Now this primary concern for having a universal law the way it 
is written, and having it implemented within the spirit in which it 
was written — are my 5 minutes up? 

Senator Simpson. You have one more minute. Sir. 

Mr. Sternberg. I must be speaking very slowly today. Well, I 
will speak faster now. 

In order to implement what we are pleading for, something has 
to be done. The Immigration Service is not in a position, because of 
limitations of staff, to reach everjrwhere where there are individ- 
uals or pockets of refugees. We don"t think it is necessary. We 
believe that wherever the Immigration Service carmot reach, it 
should delegate not its function but part of its function, to the 
Consular Service. There are many ways of having the INS make a 
final decision once the Consular Service has submitted a file, and 
once the Consular Service has made a recommendation. 

Now there is one issue which I left for the end which concerns us 
extremely, urgently at this time, and that is the adjudication proc- 
ess, which recently has changed for the worse in our judgment. The 
issue is one primarily in Southeast Asia. It is important that when 
we adjudicate refugee applications, we keep in mind both major 
criteria of the refugee definition, the second one being that a 
person who has well founded fear to return to the country from 
which he came, whatever our perception of the reasons why he 
came, must not be returned. 

This, alas, ^s not taking place right now. Refugees are deferred in 
very large numbers, deferred now because, I understand, a high 
level decision is pending. But we do hope, we plead with you, to 
read our statement which touches on this issue, and to read it with 
the spirit of compassion with which, Mr. Chairman, you opened 
this meeting. 

Thank you very much. 

Senator Simpson. Thank you very much. That was very impor- 
tant testimony, Mr. Sternberg. You know, without the work of the 
voluntary agencies of this Nation, we would be crippled in dealing 
with the challenge posed by the large number of refugees now 
entering our Nation. There is no question in my mind about that. 

[The prepared statement of Mr. Sternberg follows:] 

Prepared Statement of Charles Sternberg 

Mr. Chairman, the private association working together in the American Council 
of Voluntary Agencies have carried, in the words of the Select Commission, "the 
major responsibility for the domestic resettlement of refugees." Ever since there 
have been refugee programs and up to the arrival of the first wave of Cuban 
refugees in 1960, the voluntary agencies were not only the main but the sole actors 
on the resettlement scene. When the United States became a country of first mass 
asylum, the government had to assume an important role in the resettlement 
operation. And, since 1975 when the first large group of Indochinese refugees 



335 

reached the United States, a tri-lateral relationship and division of labor have 
developed between the private sector, the state social services, and the federal 
agencies entrusted with the increasingly difficult resettlement problems. Through 
almost half a century, the private organizations have closely cooperated in the 
resettlement work. They have learned to speak with one voice on refugee issues. 
Today, we offer testimony on behalf of the following organizations: 

American Council for Nationalities Service, American Fund for Czechoslovak 
Refugees, Church World Service, HIAS, International Rescue Committee, Lutheran 
Immigration and Refugee Service, Migration and Refugee Services, United States 
Catholic Conference, Polish American Immigration and Relief Committee, Tolstoy 
Foundation, World Relief, Young Men's Christian Association. 

I. THE WORLDWIDE SCOPE OF THE REFUGEE ACT 

The voluntary agencies welcomed the passage of the Refugee Act of 1980 and 
subscribed to the concept it embodies, namely our country's concern for refugees 
regardless of their country of origin, or the type of oppression from which they are 

fleeing. 

In practice, however, we fear that the consultation process has not reflected the 
worldwide scope of the Act. Entire geographic areas have not been indued in the 
quotas, or ceiling figures, and, in two instances, refugee groups included in the past 
were left out. 

At this time, Cuban refugees and Cuban defectors in third countries— whether 
Spain or Portugal, Costa Rica or elsewhere— are precluded from applying for admis- 
sion to the United States. So are refugees from Mainland China. The rationale in 
the Cuban case was that the internationalization of the problem, and our intention 
to establish an orderly departure program from Cuba, which would benefit former 
political prisoners, require the exclusion of Cuban refugees wherever they may be 
and whatever their plight. It was held that in view of limited admission numbers, it 
would not be fair to divert numbers that could be used to admit former political 
prisoners to those refugees who were fortunate enough to reach a third country. 

This dichotomy between refugees and former political prisoners is spurious. There 
is no predetermined pool of numbers to be used either for one or the other group. 
The orderly departure program which served to justify the ending of the refugee 
program never got off the ground. Neither former political prisoners nor refugees 
are now coming to the United States. And not even former prisoners who have 
become refugees in third countries may apply. We believe that our anger at the 
tactics of the Cuban government which, through Mariel, sent us a share of Cuba's 
misfits, should not be vented on bona fide refugees. 

The official explanation for placing Chinese beyond the ambit of our political or 
humanitarian interests was that "the Chinese refugees have found a haven in Hong 
Kong where they will be received and allowed to resettle." This was never true. For 
many years, Hong Kong has considered Chinese refugees as illegal entrants. Those 
caught at the beaches were returned to China immediately. Only those who eluded 
the border guards and reached Hong Kong proper were permitted to stay. Coinci- 
dentally with the termination of our Chinese refugee program, the Hong Kong 
authorities stopped the so-called touch-base policy and as of November 1, 1980, all 
Chinese refugees apprehended anywhere in the Crown Colony are treated as illegal 
immigrants and deported to China. 

As far as Hong Kong is concerned, there are no Chinese refugees, and we appear 
to countenance the on-going policy of mass refoulement into communist China by 
having abolished our small quota of 100 a month. 

It is more than a comment on the recommendations of the Select Commission 
that we plead today for an affirmation of the universal character of the Refugee Act 
of 1980 by establishing ceiling figures for all areas of the world without singling out 
any ethnic groups as being of no concern to us. Cubans should be able to qualify 
along with other Latin Americans; Chinese, Burmese, or refugees from the Philip- 
pines should be able to qualify along with other Asian refugees. The issue here is 
not numbers but equity. 

There is, however, a corollary to this approach. Unless refugees have access to the 
application process through the Consular Service in areas which the INS cannot 
cover, and unless the Consular Service is permitted to conduct the screening and 
submit its recommendations to the Immigration and Naturalization Service in writ- 
ing, individual refugees and refugee pockets in many parts of the world will be 
barred de facto, even if they are not excluded by the working of the quotas. 



336 

II. POLITICAL PRISONERS, VICTIMS OF TORTURE, AND PERSONS UNDER THREAT OF 

DEATH 

The need to abandon the in-person INS screening of all refugee applicants for 
admission is no less obvious in the case of political prisoners, victims of torture, and 
persons under threat of death, who are the subject of a special recommendation by 
the Select Commission. The voluntary agencies totally support it. It is not technical- 
ly feasible for INS officials to be present in all areas where such extreme situations 
arise, and we should not permit a technical requirement to defeat our goal. 

The adoption of the recommendations of the Select Commission would demon- 
strate to the world that political prisoners, victims of torture, and persons under the 
threat of death because of their religion, race, nationality, or political opinion, are 
of special humanitarian concern to the United States. 

HI. ASYLUM AND MASS ASYLUM 

Of all the provisions of the Refugee Act of 1980, the one that has largely re- 
mained dead letter is Section 208. Interim regulations were published. But since 
neither the Immigration and Naturalization Service nor the State Department has 
been able to keep pace with the huge number of asylum applications that have been 
filed, most remain pending and most asylum applicants remain in applicant status 
which, as the Select Commission has pointed out, is not in the interest either of the 
potential asylee or of the United States. 

The proposed recommendation that group profiles be developed, which would 
expedite the adjudication of asylum applications, deserves serious consideration. It 
would, to cite two salient examples, simplify the granting of asylum to most Afghan 
and Ethiopian refugees for it can safely be assumed that in few cases will we find 
that Afghans and Ethiopians now in this country can be returned to either of those 
two countries, one occupied by the Soviet Union and the other propped up by Cuban 
military forces, as having no well-founded fear of persecution if deported back home. 

A caveat, however, has to be inserted here. While a streamlining of asylum 
procedures is necessary, asylum matters are so weighty, the very concept so impor- 
tant, the need for scrupulous adherence to judicious conduct so overriding that the 
right to appeal must not be taken from the asylum seeker. 

Mass first asylum, after the experience with Mariel and the Haitian boat cases, is 
the most difficult refugee problem we have to come to terms with. The presence of 
substantial numbers of Salvadoran and Nicaraguan refugees points to a trend which 
has not run its course. It is to be expected that an aggravation of internal conditions 
in El Salvador and Nicaragua will result in more rather than fewer people seeking 
a haven in the United States. It is, therefore, essential that we devise orderly 
mechanisms to deal with the problems of mass asylum, always with a view to 
assuring equitable and humane treatment to asylum seekers. 

As for the Cubans already here, we will have to live with the likelihood, if not 
certainty, that Cuba will not readmit even those who flagrantly do not have a claim 
to acceptance by the United States, and not even those who would prefer to return 
home. Thus, since they are here, and will not be able to leave, it becomes incumbent 
on us to find a solution that will remove them from the legal limbo in which they 
find themselves and which, if perpetuated, will aggravate the adjustment and reha- 
bilitation predicament. 

With regard to the Haitians, moreover, we must be sensitive to the perceptions of 
many persons that Haitians are being discriminated against because of race, and 
the findings of Judge King which have found corroboration in recent events of 
severe repression in Haiti. 

IV. REFUGEE RESETTLEMENT 

The recommendations of the Select Commission in the area of refugee resettle- 
ment are constructive and are set out along lines that converge with the thinking of 
the voluntary agencies. We fully subscribed to self-sufficiency as a goal of resettle- 
ment. We have moved in the direction of refugee clustering beyond the regions 
which have thus far received the majority of the refugees, whether Indochinese or 
Cuban. While there is a natural tendency of ethnic groups of similar backgrounds to 
settle within reach of one another, thereby developing cohesive neighborhoods and a 
social climate that mitigate the feeling of loneliness common to most uprooted 
people, we are striving to spread such enclaves beyond the states which feel impact- 
ed by the numbers of newcomers they have received. In order to reduce welfare 
payments, we are convinced that the separation of Medicaid eligibility from cash 
assistance will be the most constructive approach. 

However, we cannot leave the subject of resettlement without touching upon an 
unfortunate change in the way refugees are being screened for admission to the 



337 

United States, a subject which has become particularly troublesome in Southeast 
Asia. What may well be at stake is the credibility of our resolve to stand by the 
victims of the communist take-over of Indochina and our readiness to assist the 
Southeast Asian countries of first asylum in their efforts to cope with their refugee 
problem in a responsible manner. If indeed Vietnamese boat-people can be pre- 
sumed to have made their long and dangerous journey through pirate-infested 
waters only in order to better themselves economically, if indeed it can be assunied 
that men will risk the lives of their children and expose their wives to the high risk 
of mass rape only to eventually make a better living, one wonders why the civilized 
world responded to their plight with such anguish a year ago. Nothing has changed 
since then. Only the numbers have gone down. Fewer refugees manage to escape 
from Vietnam, and fewer may be getting through to the shores of Malaysia and 
Thailand. 

No less perplexing is the fact that growing numbers of Cambodians are now being 
turned down — technically they are being deferred until the issue is resolved in 
Washington— as just being economic migrants. As if people who came out of the 
burning hell that was Pol Pot's Cambodia had no other complaints than the lack of 
a good job. Survivors of genocidal regimes, whether Jews or Cambodians, deserve 
better than being told to go home again because the new rulers are less genocidal 
than the old ones. These are refugees who lost all their next-of-kin and have 
nothing to go back to but their nightmares. 

Economic and political factors are closely intertwined in totalitarian countries. 
Where the State is the main employer, as well as the wielder of absolute power, 
forcible collectivizations, new economic zones, forced labor camps, and the rest are 
all part and parcel of a system that creates such unbearable conditions that even 
people who have no clear perception of the root cause of their suffering flee at great 
risk to their lives. To impugn their motives as being "purely economic" and there- 
fore not worthy of our solicitude bespeaks a great lack of sophistication and political 
judgment. But the matter becomes downright bizarre if young men who escaped 
because they did not want to serve in the Vietnamese or Laotian army are now 
denied acceptance as refugees. 

If we continue to deny admission to such young people, does this not imply that 
we somehow believe it is the duty of all young Vietnamese and Laotians to be 
soldiers and do their part in the military occupation of Cambodia? 

It must be kept in mind that the INS deferrals contain not only a finding that the 
applicants in point did not suffer persecution before they fled, but also the corollary 
finding that they have no well founded fear of persecution if returned to Vietnam, 
Cambodia, or Laos. Escape, it is held, will go unpunished, and the young men who 
preferred escape to service in the armed forces will go unharmed. If this egregious 
position — in the face of strong State Department representations to the contrary — 
should be permitted to prevail, are we not giving a clean bill of health to Hanoi and 
the two surrogate governments it controls? 

It goes without saying that the ASEAN countries are closely watching what we 
are doing. Thailand has deported refugees before, and Malaysia did not hesitate to 
push boat-people back out to sea when it felt that it might not be relieved of their 
burden. If we affirm the present policy and rule the refugees now deferred are 
inadmissible, the Thais and Malaysians are bound to interpret this as a signal that 
the closing of their borders, refoulement, and mass repatriations of refugees now in 
their countries would not be faulted by us. No country is likely to accept our rejects, 
and if the refugees are not refugees, why should Thailand and Malaysia or any 
other country offer them hospitality? The only result we will achieve is another 
international crisis which will bring with it the loss of innocent lives. 

This issue arose after the Select Commission had concluded